Bienstein v Attorney General

REASONS FOR JUDGMENT 1 In 2003, the appellant Ms Bienstein made separate requests for access to documents to each of the Attorney-General for the Commonwealth and the Minister for Justice and Customs (now the Minister for Home Affairs). Those requests became the subject of proceedings and a decision of the Administrative Appeals Tribunal ("the AAT"). Ms Bienstein appealed the AAT's decision to this Court. She also made a related application for an order of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). Both applications were heard, determined and dismissed by the trial judge who also made an order that Ms Bienstein pay the respondents' costs: Bienstein v Attorney-General [2009] FCA 1501. This decision deals with Ms Beinstein's appeal from the judgment of the trial judge. 2 The reasons for judgment of the trial judge are comprehensive. In large part his Honour's reasons for judgment dealt with issues raised relating to the proper interpretation of the Freedom of Information Act 1982 (Cth) ("the FOI Act"). What his Honour described as the principal question, was whether, when dealing with a deemed decision to refuse access to documents, the AAT has power to compel the recipient of a request to make an actual decision in response to the request. The trial judge determined that the AAT does not have that power. The trial judge rejected Ms Bienstein's contention that the AAT's decision should be set aside on the ground of bias. Additionally, a number of other questions raised by Ms Bienstein were held to be general and not sufficiently related to the decision of the AAT to be capable of being dealt with under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). 3 The trial judge also dismissed Ms Bienstein's application under the ADJR Act. He did so on the basis that, even if she had been able to establish that there was an obligation on a recipient of a request to make an actual decision in response to the request, given the AAT's findings under s 24 of the FOI Act, the grant of any relief would be futile. 4 We have not been persuaded that the trial judge's judgment is attended with any appealable error. It is not necessary to recount each of the matters raised on appeal by Ms Bienstein. We agree with the trial judge's analysis of the relevant legal questions, his Honour's reasoning and his conclusions. There are two matters which require some further elaboration. 5 The trial judge noted the absence in the FOI Act of any express obligation on the recipient of a request for access to documents to make an actual decision. His Honour's decision did not refer to s 15(5)(b) of the FOI Act. On the appeal Ms Bienstein placed much reliance upon s 15(5)(b), emphasising that it is to be construed by reference to the right conferred by s 11(1)(a) of the FOI Act which is in the following terms: 11. (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to: (a) a document of an agency, other than an exempt document; or (b) ……. 6 Much of what was submitted by Ms Bienstein was based upon her erroneous contention that s 11(1)(a) conferred upon her a right to insist upon a decision in response to her request for access to documents. The right actually conferred by s 11(1)(a) is a right to obtain access. When an actual decision in response to a request is not made within the period allowed, s 56 of the FOI Act deems a decision refusing access to have been made and provides that the legally enforceable right of a person to obtain access may be facilitated through an application to the AAT. When such an application is made, the AAT has the power to decide any matter in relation to the request that could have been decided by an agency or Minister: see s 55(1)(a) and s 58(1) of the FOI Act. 7 The requirements of s 15(5)(b) are to be read and understood in the context of s 56 and in the light of the scheme of the FOI Act dealing with deemed refusals. Once an application to the AAT is made, the duty to notify an applicant of an actual decision on the request for documents, which is what s 15(5)(b) requires, is superseded by the processes provided for in ss 55 and 56. For those reasons, Ms Bienstein's reliance upon s 15(5)(b) is misplaced. 8 Ms Bienstein also challenged the trial judge's order that she pay the respondents' costs. She contended that his Honour failed to follow authority and that he had failed to accord her procedural fairness. Ms Bienstein was not expressly invited to make submissions on the question of costs. Given that she was self represented, it may have been the case that the failure to invite her to do so could have constituted a failure to affordher an opportunity to be heard on that issue. That, however, is not a matter that we need to determine. 9 Having heard what Ms Bienstein had to say about costs we are in no doubt that the trial judge's order was correct. It may well be preferable that in the exercise of a court's wide discretion as to costs, an order for costs not be made against a losing applicant in a case concerning a matter of significant public importance. However, this was not such a case. 10 Ms Bienstein also characterised the appeal as raising matters of public importance in order to resist a costs order being made against her should she fail on the appeal. The appeal has not raised matters of public importance sufficient to displace the principle usually applied, that costs should follow the event. 11 For those reasons, we will make orders dismissing the appeal and requiring Ms Bienstein to pay the respondents' costs of the appeal. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Tracey and Bromberg.