Fisse v Secretary, Department of the Treasury (No 2) [2008] FCAFC 200 (24 December 2008)

Last Updated: 5 January 2009

FEDERAL COURT OF AUSTRALIA

Fisse v Secretary, Department of the Treasury (No 2) [2008] FCAFC 200

PRACTICE AND PROCEDURE – appeal dismissed – subsequent opportunity sought to make submissions as to costs – need to make submissions during the hearing of the appeal – appeals from Administrative Appeals Tribunal – public interest litigation


Federal Court of Australia Act 1976 (Cth), s 43
Federal Court Rules 1979 (Cth), O 62 r 3(1)


Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8, 165 FCR 211 cited
Colakovski v Australian Telecommunications Corp (1991) 29 FCR 429 cited
Collector of Customs (Qld) v Times Consultants Pty Ltd (1986) 13 FCR 190 cited
Condren v Secretary, Department of Family & Community Services [2000] FCA 743 cited
Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 followed
Fisse v Secretary Department of Treasury [2008] FCAFC 188 cited
Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572 applied
Harrigan v Department of Health (1986) 72 ALR 293 cited
Hussain v Minister for Foreign Affairs [2008] FCAFC 128, 169 FCR 241 cited
Martinsen v Secretary, Department of Family and Community Services [2004] FCA 297, 80 ALD 598 cited
O’Driscoll v Telstra Corp Ltd [2004] FCA 48 cited
Ruddock v Vadarlis [2001] FCA 1865, 115 FCR 229 distinguished
Save the Ridge Inc v Commonwealth [2006] FCAFC 51, 230 ALR 411 followed
Shelton v Repatriation Commission [1999] FCA 181, 85 FCR 587 considered
Siminton v Australian Prudential Regulation Authority (No 2) [2008] FCAFC 113 applied
Wilderness Society Inc v Minister for Environment and Water Resources [2008] FCAFC 19, 101 ALD 1 cited
Your Water Your Say Inc v Minister for the Environment, Heritage & the Arts (No 2) [2008] FCA 900 cited


Campbell E, ‘Public Interest Costs Orders’ (1998) 20 Adel L Rev 245



BRENT FISSE v SECRETARY, DEPARTMENT OF THE TREASURY and ADMINISTRATIVE APPEALS TRIBUNAL
NSD 632 of 2008

STONE, BUCHANAN AND FLICK JJ
24 DECEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 632 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY PROFESSOR G D WALKER DEPUTY PRESIDENT

BETWEEN:

BRENT FISSE Applicant

AND:	SECRETARY, DEPARTMENT OF THE TREASURY First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	STONE, BUCHANAN AND FLICK JJ
DATE OF ORDER:	24 DECEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. There be no variation of the order as made on 11 December 2008.

2. The Applicant is to pay such further costs as have been incurred by the First Respondent by reason of the making of further submissions as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 632 of 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY PROFESSOR G D WALKER DEPUTY PRESIDENT

BETWEEN:

BRENT FISSE Applicant

AND:	SECRETARY, DEPARTMENT OF THE TREASURY First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	STONE, BUCHANAN AND FLICK JJ
DATE:	24 DECEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 On 10 April 2008, the Administrative Appeals Tribunal published its reasons for decision affirming a decision upholding claims for exemption pursuant to ss 34 and 36 of the Freedom of Information Act 1982 (Cth). Of present relevance was the exemption claimed pursuant to s 34(1)(a) of the 1982 Act, which provides as follows:

Cabinet documents (1) A document is an exempt document if it is: (a) a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet...

The Tribunal concluded that the relevant document for which the exemption was there claimed, namely an "Executive Summary", had been prepared for the "purpose" of being submitted to Cabinet. Prior to the decision of this Court, s 34(1)(a) had not previously been the subject of judicial consideration.

2 An appeal from that decision was heard by this Court on 26 September 2008. Written outlines of submissions were filed on behalf of both the Applicant and the First Respondent to that proceeding, the Secretary to the Department of the Treasury. The written submissions filed on behalf of the Secretary stated that an order was sought "dismissing the appeal ... with costs". A written outline of submissions in reply was also filed on behalf of the Applicant. That outline was silent as to the appropriate order to be made as to costs in the event that the appeal was dismissed.

3 Reasons for decision dismissing the appeal with costs were published on 11 December 2008: Fisse v Secretary Department of Treasury [2008] FCAFC 188.

4 When those reasons for decision were published, the Applicant at that stage sought an opportunity to make submissions as to costs. The Applicant was granted the indulgence to file written submissions as to costs and why the order made by this Court should be varied. The variation to the order as made on 11 December 2008, as now sought by the Applicant, is that each party should pay its own costs.

5 No variation to the order previously made is considered appropriate. In so concluding, three matters of principle need to be recalled at the outset.

6 First, it must necessarily be recognised that the broad discretion conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) to make an order as to costs is not to be automatically exercised adversely to a losing party. Proceedings involving an appeal from the Administrative Appeals Tribunal have attracted particular attention. In Shelton v Repatriation Commission [1999] FCA 181, 85 FCR 587 there had been a decision of the Tribunal and a decision on appeal. In the further appeal to the Full Court, Burchett, RD Nicholson and Finkelstein JJ concluded that costs should not follow the event. Their Honours observed in part (at 590):

[10] ... Often, in administrative law, such an application as this was clarifies the law in a wider interest than that of the applicant. Indeed, it is as essential to good administration as it is important in the interests of individual justice that administrative decisions should be open to accessible review. Persons affected by administrative decisions should not be overmuch deterred by the threat of costs orders in such cases, and the very wide discretion given to the Court by the Federal Court of Australia Act 1976 (Cth) should not be automatically exercised adversely to the losing party.

The Full Court in Harrigan v Department of Health (1986) 72 ALR 293 also recognised the fact that parties to proceedings before the Tribunal are generally not exposed to an order for costs but become so exposed when an appeal is filed. In addressing a situation where there had been a joinder of a party to the Tribunal proceeding, Fisher, Wilcox and Jackson JJ there observed (at 296–7):

Subject to any relevant statutory provision, it is generally desirable that persons whose interest may be affected by the outcome of proceedings before the Tribunal have the opportunity of participating in those proceedings. The general rule is that, before the Tribunal, all parties bear their own costs. There is, therefore, little danger that a decision to allow the joinder of additional parties will result in the imposition on another party of an undue burden of costs. By contrast, however, in proceedings in the court under ss 44 and 45 of the Administrative Appeals Tribunal Act it is usual to order that the unsuccessful party pay the costs of the successful party. Care needs to be exercised to ensure that a combination of a liberal attitude as to joinder before the Tribunal and the application in this court of the usual costs rule does not result in unfairness to the party who is unsuccessful. As the matter of costs is discretionary, no fixed rule can, or should, be propounded, but relevant matters for consideration are the nature of the particular proceedings and the position taken by the various parties before the court. The present proceeding is a case stated, for its own guidance, by the Tribunal.

These comments provide an important reminder of the legislative objectives sought to be achieved by providing both a means of administrative review before the Tribunal and in providing an appeal to this Court.

7 Where it is a statutory authority which has been unsuccessful before the Tribunal, but successful on appeal, there may be strong reasons of policy why the authority should not seek an order for costs: Collector of Customs (Qld) v Times Consultants Pty Ltd (1986) 13 FCR 190. Davies J there observed (at 198):

The applicant sought costs of the appeal. The grant of costs was opposed by ... counsel for the respondent, on the basis that the matter had arisen before a Tribunal in which costs were not awarded and that it was undesirable that the applicant before the Tribunal should become involved in costs on an appeal. Certainly, there are quite strong reasons of policy from the Tribunal’s point of view why respondents to proceedings in the Tribunal, who successfully appeal to this Court, should not seek an award of costs if successful, and frequently, such costs are not sought. ...

His Honour there went on, however, to award the successful applicant its costs of the appeal. Consistent with His Honour’s comments, instances can be provided where a successful statutory authority has not sought an order for costs, even where the proceeding against it is without apparent merit: eg, O’Driscoll v Telstra Corp Ltd [2004] FCA 48. Instances can also be provided where the question of costs has been deferred (inter alia) to permit a successful Commonwealth respondent to "reflect" on whether an order for costs would be sought, and where an order was then made when requested: eg, Condren v Secretary, Department of Family & Community Services [2000] FCA 743. Of some relevance to the exercise of the discretion is whether any notification to a party to proceedings before the Tribunal of a right of appeal to this Court has also been notified of the potential exposure to costs should there be an appeal: cf Martinsen v Secretary, Department of Family and Community Services [2004] FCA 297 at [27], [2004] FCA 297; 80 ALD 598 at 603–4 per Spender J.

8 The broad discretion conferred by s 43 nevertheless remains to be exercised by reference to the facts and circumstances of individual cases. In the context of the Freedom of Information Act, it has thus been recognised that even where it is the applicant who has unsuccessfully sought review of a decision denying access to documents, and who is equally unsuccessful on appeal, he may nevertheless not have to pay the costs of his appeal: eg, Colakovski v Australian Telecommunications Corp (1991) 29 FCR 429. Reference may also be made to Hussain v Minister for Foreign Affairs [2008] FCAFC 128 at [178]–[179][2008] FCAFC 128; , 169 FCR 241 at 281, where no order for costs was made in circumstances where the applicant had been unsuccessful in his appeal from a decision of the Tribunal affirming a decision to cancel a passport and issuing an adverse security assessment. Weinberg, Bennett and Edmonds JJ there concluded:

[183] In the end, a combination of factors has led us to conclude that there should be no order as to costs. Sections 39A and 39B are new and represent a significant departure from procedures normally followed before the Tribunal. They have been the subject of only limited judicial consideration. There is a wider public interest in having the question of their validity determined. The applicant's challenge to these provisions, though ultimately unsuccessful, was reasonable. [Counsel for the Respondents] properly conceded that the process mandated by these provisions was unfair and that fact, together with the consequences for the applicant of being denied his freedom to travel, justifies the challenge that was brought. Taken together, these factors warrant a departure from the usual order as to costs. Accordingly, there will be no order as to costs.

9 Second, "there is no special costs regime applicable to ‘public interest’ litigation": Save the Ridge Inc v Commonwealth [2006] FCAFC 51 at [6], [2006] FCAFC 51; 230 ALR 411 at 413 per Black CJ, Moore and Emmett JJ. Similarly, in rejecting a broadly expressed submission as to "public interest litigation", Gummow J (when sitting as a Judge of this Court), has observed that "there are no special categories which control the general discretion given by s 43": Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 at 416. But a legitimate public interest in the importance of the issues resolved is a factor that may be taken into account when exercising the discretion conferred by s 43. Instances can be provided where the public interest has been a factor relied upon in not making an order for costs (eg, Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8 at [68]–[75][2008] FCA 8; , 165 FCR 211 at 227–8) or in making an order confining costs to only part of the costs otherwise payable (eg, Wilderness Society Inc v Minister for Environment and Water Resources [2008] FCAFC 19, 101 ALD 1); instances can also be provided where such a factor has not prevailed (eg, Your Water Your Say Inc v Minister for the Environment, Heritage & the Arts (No 2) [2008] FCA 900). Some of the authorities relevant to a discretionary power to order the payment of costs and the public interest, it may be noted, have been usefully collated and discussed by Professor Campbell in ‘Public Interest Costs Orders’ (1998) 20 Adel L Rev 245.

10 In the present appeal, the Applicant seeks to rely in particular upon the following observations of Black CJ and French J (as he then was) in Ruddock v Vadarlis [2001] FCA 1865, 115 FCR 229:

[28] There is a number of considerations relevant to the question whether costs should be awarded against the unsuccessful respondents, VCCL and Vadarlis. It is not in issue that no costs order should be made against the intervenors, the Human Rights and Equal Opportunity Commission and Amnesty International Ltd. Considerations particular to the exercise of the discretion are: 1. The Commonwealth and associated parties succeeded on the appeal. 2. By reason of the orders made on the appeal the Commonwealth succeeded on the application at first instance. 3. The Commonwealth may be expected to have incurred substantial legal costs in the proceedings at first instance and on appeal. The preceding factors weigh in favour of an order for costs in accordance with "the usual rule". There are, however, particular features in this case that together point powerfully in the other direction: 4. The proceedings raised novel and important questions of law concerning the alleged deprivation of the liberty of the individual, the Executive power of the Commonwealth, the operation of the Migration Act and Australia’s obligations under international law. 5. There was divided judicial opinion on these important issues, illustrating their difficulty. 6. The Commonwealth Parliament has subsequently passed laws purporting to exclude the rights of VCCL and Vadarlis or any other person to pursue the matter further, albeit special leave to appeal in the High Court was refused on other grounds going to utility and jurisdiction. 7. The Commonwealth Parliament has also legislated to establish, as a proposition of statute law, in accordance with the view of the majority in the Full Court, that the Migration Act does not prevent the exercise of the Executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders. 8. There was no financial gain to either VCCL or Vadarlis in bringing their claims. 9. The legal representation for VCCL and Vadarlis was provided free of charge. The quality of the representation (on all sides) ensured that the proceedings, and the important questions to which they gave rise, were pursued and resolved with expedition and efficiency.

11 Third, O 62 r 3(1) of the Federal Court Rules provides that the Court "may in any proceeding exercise its powers and discretions as to costs at any stage of the proceeding or after the conclusion of the proceeding". A "proceeding" is defined by s 4 of the Federal Court of Australia Act as meaning "a proceeding in a court ... and also includes an appeal".

12 Even though the Court may exercise its power as to costs "after the conclusion of the proceeding", it has long been accepted that the time at which submissions as to costs should be made is generally the time at which the Court is hearing the appeal itself -- not after judgment has been delivered: Siminton v Australian Prudential Regulation Authority (No 2) [2008] FCAFC 113. Spender ACJ, Lander and Buchanan JJ there observed:

[4] Before we deal with those submissions it is appropriate to say something about the procedural history of this issue. In the notice of appeal the appellant sought an order that a notice of motion brought by the District Registrar of the Court, which provided the foundation for the orders made by the primary judge, ‘be dismissed with costs’. In written submissions filed in support of the appeal nothing at all was said about the issue of costs. Normally the Court would assume that a successful litigant desired that costs would follow the event. If some different course was to be urged then it should be foreshadowed (see Hewlett Packard Pty Ltd v G E Capital Finance Pty Ltd [2003] FCAFC 278 at 13 and Shahid v Australasian College of Dermatologists (No 2) [2008] FCAFC 98 at [11]). Moreover, where possible, the Court should be put in a position to deal with the question of costs in its initial judgment unless there is a particular reason to reserve that question for later, and separate, consideration (see Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of New South Wales (No 2) [2007] FCAFC 95; (2007) 159 FCR 274 at [26] referring to ACCC v Daniels Corporations Pty Ltd [2001] FCA 936 and Grygiel v Baine (No 2) [2005] NSWCA 434).

A similar view was also expressed by Wilcox and Kiefel JJ in Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572 where their Honours observed:

[2] No reference was made to the matter of costs during the hearing of the appeal. This was the appropriate time to put any submission that costs, whether of the trial or appeal, ought not to follow the event. If it had been thought desirable to have the Court’s decision on the substantive issue before putting submissions in relation to costs, as is sometimes appropriate in complicated cases, this could and should have been raised with the Court during the hearing. It is inappropriate for a party to say nothing about costs, or any other ancillary matter, during the hearing, await the outcome of the appeal and then ask the Court to vary its orders.

Concurrence is expressed with these views.

13 Ultimately, it is the broad discretion conferred by s 43 which must be exercised by reference to the facts and circumstances of an individual case.

14 In the present proceeding, the Applicant was alerted to the fact that the First Respondent sought an order for costs in the event that the appeal was dismissed. So much was unambiguously set forth in the Secretary’s written submissions. The Applicant (for whatever reasons) refrained from making any submission as to costs in its written submissions in reply. No explanation was forthcoming on the part of the present Applicant as to why any submission as to costs was not advanced during the course of the hearing of the appeal. A course should neither be endorsed nor encouraged whereby a party can await the result of an appeal and thereafter seek an opportunity to make submissions as to costs which could have been, and which should have been, advanced during the hearing of the appeal itself.

15 In all of the circumstances it is not considered that there should be any variation of the order as to costs as made on 11 December 2008. The importance of freedom of information legislation in conferring a statutory right of access to documents, subject to the exemptions contained within that legislation, cannot be underestimated. Equally, there is an importance in ensuring that each of the statutory exemptions are properly construed and applied. Perhaps somewhat surprisingly, s 34(1)(a) of the Commonwealth legislation had not received prior judicial consideration.

16 Notwithstanding the fact that s 34(1)(a) had not received prior judicial consideration, the present appeal to this Court in respect to that provision was dismissed upon the basis of the finding of fact made by the Tribunal -- that the "purpose" for which the "Executive Summary" had been prepared was for its submission to Cabinet within the meaning of s 34(1)(a) of the 1982 Act. That finding, it was held, was a finding of fact with which this Court could not interfere. There is not considered to have been any question of the statutory construction of s 34(1)(a) involved in the appeal which would warrant any departure from the usual practice as to costs "following the event". The importance of s 34(1)(a) may be acknowledged, as may the more generally expressed public interest in the disclosure of the "Executive Summary" -- but the appeal was dismissed, not upon the basis of resolving any real question as to the construction of s 34(1)(a), but rather upon the basis that the Applicant could not overcome the adverse finding of fact as made by the Tribunal. Moreover, that finding was directed to the facts of the case before the Tribunal and directed to the "purpose" for which a particular document had been brought into existence. No issue of any general importance arose out of the manner in which the Tribunal resolved that question of fact.

17 Even had the Applicant been able to overcome the adverse finding of fact, no other question as to the construction of s 34(1)(a) otherwise emerged which would have resulted in any different order being made as to costs.

18 Also relevant to the discretion as to costs is that the appeal from the decision of the Tribunal was not confined to s 34(1)(a) of the 1982 Act; there was also an appeal as to the Tribunal’s conclusion as to the application of s 36 of that Act to a further document, being a "Working Party Report". The application of s 36 to the facts before the Tribunal may have been a subsidiary aspect to the appeal. It remained, however, an issue pursued on appeal and involved no matter warranting any special consideration relevant to the order as to costs to be made. When seeking a variation of the order as made to costs, the Applicant properly did not make any submission as to s 36.

19 Nor is there considered to be any reason to depart from the usual practice as to costs by reason of the appeal being an appeal from the Administrative Appeals Tribunal, a jurisdiction in which parties generally are not exposed to an adverse order as to costs. The Applicant before this Court had the benefit of a carefully reasoned decision of the Tribunal as to the application of s 34(1)(a) to the document to which he had sought access. Before the Tribunal he lost. He sought to appeal to this Court, as was his right. But in doing so he thereafter exposed himself to the prospect that in this Court he may be ordered to pay costs in the event that his appeal did not prevail. Given the representation of the Applicant by both Senior and Junior Counsel, no question arises as to the Applicant not having been advised of his exposure as to an adverse costs order in the event that his appeal was unsuccessful, and no question arises as to the need to either make submissions as to costs during the course of the hearing of the appeal or to foreshadow that an opportunity would be sought to make submissions subsequent to judgment.

20 The Applicant should pay the First Respondent such further costs as have been occasioned by the resolution of the application to vary the order as to costs made on 11 December 2008.

ORDERS

21 The orders of the Court are:

1. There be no variation of the order as made on 11 December 2008.

2. The Applicant is to pay such further costs as have been incurred by the First Respondent by reason of the making of further submissions as to costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Stone, Buchanan and Flick.

Associate:

Dated: 24 December 2008

Date of Judgment:

24 December 2008