Clive Davison v Commonwealth of Australia & Anor [1998] FCA 529 (15 May 1998)

Last Updated: 20 May 1998

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 9 of 1998

BETWEEN:	CLIVE DAVISON Applicant
AND:	THE COMMONWEALTH OF AUSTRALIA First Respondent THE AUSTRALIAN CAPITAL TERRITORY Second Respondent
JUDGE:	FINN J
DATE OF ORDER:	15 MAY 1998
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The proceeding be dismissed.

2. The Respondents pay the Applicant's costs from the initiation of the proceeding up until 17 December 1997 and thereafter no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 9 of 1998

BETWEEN:	CLIVE DAVISON Applicant
AND:	THE COMMONWEALTH OF AUSTRALIA First Respondent THE AUSTRALIAN CAPITAL TERRITORY Second Respondent

JUDGE:	FINN J
DATE:	15 MAY 1998
PLACE:	CANBERRA

REASONS FOR JUDGMENT

Background

For the purposes of an appeal to the Supreme Court of the Australian Capital Territory from a decision of the Magistrates Court adverse to him, the applicant, Clive Davison, wrote to the Registrar of the Supreme Court on 17 April 1997 in the following terms:

"this is a request under the Freedom of Information Act 1982 (Commonwealth) and under the Freedom of Information Act 1989 (ACT) for a copy of the following documents:

1) A copy of the transcript of proceedings between Clive Davison and the Australian Federal Police (file number = CC96/23735), that is not available to the public through the Supreme Court,

2) A copy of the document containing the date of the hearing for my appeal - that will be before Supreme Court Justices in the near future. I know this document exists because it is not the sort of information that would be recorded on a whiteboard."

This request was refused. After making application to the Commonwealth Administrative Appeals Tribunal (which disclaimed jurisdiction in the matter) and after a number of abortive attempts to initiate legal proceedings in the original jurisdiction of the High Court, Mr Davison was given leave by that court to issue a writ and statement of claim on 22 September 1997. The principal relief sought in the ensuing proceeding was founded on the denial of access to both documents sought in his letter and was for declarations:

(a) against the Commonwealth of Australia, the first respondent, that (inter alia) the Australian Capital Territory (Self-Government) Act 1988 (Cth) is unconstitutional and invalid; and

(b) against the Australian Capital Territory, the second respondent, that all laws made by the ACT Legislative Assembly subsequent to self-government are invalid.

On 17 December 1997 the Registrar of the Supreme Court decided to - and did - make a copy of the transcript available to Mr Davison. I should add that there is no document yet in existence containing the hearing date of Mr Davison's appeal to the Supreme Court (the second document sought), that date not as yet having been fixed.

For the sake of completeness I would note that the transcript in question was obtainable from the Magistrates Court as of right on payment of a fee.

Notwithstanding that he has received the transcript Mr Davison continues as a litigant in person to prosecute his claim for the declarations sought. He is of the view that while he was given the transcript it was not provided to him under the Commonwealth's Freedom of Information Act 1988 ("the FOI Act"). To this distinction, he clings in this matter. I should add that notwithstanding that his request for documents also invoked the ACT's FOI legislation, the constitutional questions have made the Commonwealth legislation alone of present relevance.

The Present Motions

Both respondents in separate motions (I put their substance compendiously) seek orders (a) under O 20 r 2 of the Federal Court Rules or pursuant to the court's implied powers, that Mr Davison's application be dismissed or else stayed on the grounds that it is frivolous or vexatious or an abuse of process; or (b) that Mr Davison lacks a sufficient interest in the subject matter of the proceeding to maintain an action against either respondent for the relief sought.

Insofar as the motions are based on lack of a sufficient interest (or "standing"), the test to be applied is whether Mr Davison has a "special interest in the subject matter of the action": Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493; Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27; and see also Allan v Development Allowance Authority (1998) 152 ALR 439.

Likewise the principles to be applied to motions under O 20 r 2 are well settled. They include the following: (i) a summary order for dismissal should be made only in a very clear case: Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91; (ii) where no reasonable cause of action is alleged it must be demonstrated that the applicant's case is so clearly untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130; and (iii) where the proceeding itself or orders sought in it would be futile in the circumstances, it would be an abuse of process to allow the application to proceed: eg Orison Pty Ltd v Strategic Minerals Corporation NL (1988) 81 ALR 183. As to (iii) I would note that futility can result because (a) conduct or events subsequent to the cause for complaint has, for practical purposes, removed that cause: eg Inglis v Carmody, unreported FCA, Finn J, 6 May 1998; (b) the relief sought would have no legally operative effect upon the conduct complained of: eg Orison's case, above; (c) the passage of time has, in the circumstances, deprived the issues in controversy of real practical significance: eg Beitseen v Johnson (1989) 29 IR 336; La Roche v Cormack [1991] FCA 627; (1991) 33 FCR 414.

Before considering this matter in light of the above, I should again emphasise that the only document the denial of access to which could have given rise to dispute between the parties is the transcript of the Magistrates Court proceedings. The other document sought, as I have indicated, does not exist.

With the provision to Mr Davison of the transcript, so ended the actual issue between the parties - and it was to that issue that the constitutional questions were appendages. The twin effects of this are, first, that the application itself ought at least be stayed on grounds of futility because there is no longer any live question between the parties concerning the supply of the transcript upon the determination of which their rights therein depend; and secondly, in consequence of the transcript being given, that Mr Davison's interest in the constitutional questions is no greater than that of a member of the community of the Australian Capital Territory and for this reason the application should not only be stayed but be dismissed.

Mr Davison has sought to deflect this, first, by asserting that while he was given the transcript he was not given it under the FOI Act. In my view for the purposes of making out the futility of allowing this application to proceed, it is sufficient that the transcript was given to him. Whether or not the Registrar was entitled to refuse to give it, or was obliged to give it, is not to the point. It was provided. And it is just such an outcome that the FOI Act aims to promote. As s 14 of the Act stipulates:

"14. Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so."

Secondly and relatedly, Mr Davison has sought to argue he has "a sufficient interest" in the matter (ie of access to the transcript under the FOI Act) to be allowed to agitate the constitutional questions. While it is the case that "[w]hat gives a person standing is not necessarily the same as what the case will be about if they are recognised as having standing": Aronson and Dyer, Judicial Review of Administrative Action, 660; and see Allan v Development Allowance Authority, above; Mr Davison, as I have already held, does not now have the requisite interest in virtue of his FOI Act claim to contest the constitutional questions. His "interest" now, such as it is, is in those questions alone. He has sought to justify his being allowed to proceed with them by reference to English authority founded on O 53 r 3 of the Rules of the Supreme Court: on standing generally in that jurisdiction see Wade and Forsyth, Administrative Law, 696-718; and see R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte World Development Movement Ltd [1994] EWHC Admin 1; [1995] 1 WLR 386, esp at 395-396 to which Mr Davison has referred in written submissions.

It is unnecessary for me here to explore whether there has been a substantial convergence between Australian and English law on the sufficiency of the interest necessary to establish standing: cf Aronson and Dyer, above at 663-664. Suffice it to say that, in the absence of an appropriate interest being had in the "FOI matter", Mr Davison's interest in the constitutional questions, as I have said, is no more than that of a member of the community. That is inadequate for present purposes. In any event, as I will next indicate, the case is not one in which declaratory relief would be appropriate in the circumstances.

The only practical purpose to be served by allowing Mr Davison's application to proceed would be to allow him to ventilate the constitutional questions. But as the matter now stands a court would as a matter of discretion refuse to give declaratory relief in the terms sought. As was indicated in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 582 in language peculiarly apposite to the present matter:

"declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have `a real interest' and relief will not be granted if the question `is purely hypothetical', ... or if `the Court's declaration will produce no foreseeable consequences for the parties'."

Finally, even if Mr Davison were to agitate the constitutional questions his application would nonetheless be futile for another reason. Any relief he might thereby obtain could have no legally operative effect on such claim as he has sought to make for the provision of a transcript: cf Orison's case, above. There are two reasons for this. First, assuming that the Commonwealth's FOI Act otherwise applies to the Supreme Court of the ACT, could a transcript of Magistrates Court proceedings in its possession for the purposes of a proceeding in the Supreme Court be obtained under the Act? Section 5 of the Act, insofar as presently relevant, provides:

"Act to apply to courts in respect of administrative matters

5. For the purposes of this Act -

(a) a court shall be deemed to be a prescribed authority;

...

(c) a registry or other office of a court and the staff of such a registry or other office when acting in a capacity as members of that staff, shall be taken as a part of the court,

but this Act does not apply to any request for access to a document of the court unless the document relates to matters of an administrative nature." (Emphasis added)

It is in my view clear beyond any reasonable argument that a transcript of the proceedings and decision of a court held by another court for the purpose of the latter's exercise of its appellate jurisdiction in relation to the proceeding transcribed, is not in the latter's hands, a document relating "to matters of an administrative nature". It relates directly to an exercise of the judicial function of a court - cf Loughnan v Altman [1992] FCA 580; (1992) 39 FCR 90 - and as such would not, for the purposes of the FOI Act s 5, be an appropriate subject of a request for access under that Act.

Secondly, there is the larger question whether the FOI Act applies to the Supreme Court of the ACT in any event, s 5 of the Act notwithstanding. There is no need for me to express a concluded view on this, and I refrain from so doing. I would, though, note that when one tracks through provisions and definitions of the FOI Act (see s 5(a); s 4(1) "prescribed authority" and "enactments"; s 4A(1)) and of the Australian Capital Territory (Self-Government) Act (s 3 "enactment"; s 34(2); Schedule 2), the Australian Capital Territory Supreme Court Act 1933 would seem relevantly to be an "ACT enactment" with the consequence that the Supreme Court is not a "prescribed authority" for the purposes of the FOI Act. I further note that the Commonwealth has submitted that this outcome would be unaffected by a finding that the Self-Government Act was beyond the legislative power of the Commonwealth Parliament.

Because I have concluded both that Mr Davison's application is futile for several reasons and that he lacks standing in the circumstances to agitate the constitutional questions, the appropriate order to be made is that the proceeding be dismissed. The respondents have agreed to an order that they pay the applicant's costs from the initiation of the proceeding until he was supplied with the transcript and that thereafter there be no order as to costs. I am prepared to make a costs order in those terms.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn

Associate:

Dated: 6 May 1998

Applicant appeared in person:
Counsel for the Respondent:	G Kennett
Solicitor for the Respondent:	Australian Government Solicitor
Counsel for the Second Respondent	A Robertson SC
Solicitor for the Second Respondent	ACT Government Solicitor
Date of Hearing:	6 May 1998
Date of Judgment:	15 May 1998