FREEDOM OF INFORMATION - Costs - Discretion of Tribunal to recommend payment of applicant's costs by Commonwealth - Applicant substantially successful in application for review - Whether payment of costs would cause financial hardship to applicant - Whether decision of Tribunal on review will be of benefit to general public - Whether decision of Tribunal on review will be of commercial benefit to applicant - Whether reviewable decision was reasonable - Other general relevant considerations - Whether conduct of respondent caused unreasonable delay and unnecessary costs to applicant.

Freedom of Information Act 1982 s66(1), (2)

Cashman & Partners v Secretary, Department of Human Services and Health [1995] FCA 1730; (1995) 61 FCR 301

Re Chan and Department of Immigration and Ethnic Affairs (No 2) (1985) 8 ALN N52

Re Lianos and Secretary, Department of Social Security (No 2) [1985] AATA 281; (1985) 9 ALD 43

Re Paterson and Department of Arts, Heritage and Environment (No 2) (1985) 8 ALD 227

Re Sullivan and Department of Industry, Science and Technology and Australian Technology Group Pty Ltd Unreported, Decision No 10889B, 20 March 1998

Re Toomer and Department of Primary Industries and Energy [1991] AATA 31; (1991) 22 ALD 164

WAJ and Commonwealth Ombudsman and Grace Rosemary Brown, [1999] AATA 13

Re Cosco and Treasury (1999) 54 ALD 366

Gino Da Pont, Charity Law in Australia and New Zealand, Oxford University Press

McGregor-Lowndes et al, Legal Issues for Non-Profit Associations, LBC, 1996

1. This is the third "decision" in this matter. This decision is confined to the question of whether, pursuant to s66 of the Freedom of Information Act 1982 ("the Act"), a recommendation ought to be made to the Attorney-General to authorise the payment of costs to the applicant in relation to the proceedings.

2. The Tribunal handed down the first "decision" on 8 October 1999. The Tribunal then ruled that it did not lack jurisdiction to determine any of the matters raised in the original application. That preliminary ruling paved the way for the applicant to pursue its original application of 17 July 1996 pursuant to s55 of the Act, for access to documents. This was so notwithstanding that by the time the matter came on for substantial hearing over 5 days in October 1999, many of the applicant's requests for access had been resolved one way or another.

3. The Tribunal's ruling of 8 October 1999, in relation to jurisdiction, provides a brief history of events leading up to that preliminary hearing. That records as fact the occurrence of extensive preliminary proceedings and considerable interaction between the parties, both inside and outside the Tribunal over a lengthy period of time. The cause of delays in bringing on the matter for hearing included a lengthy de-listing of the matter to allow parties "to chase up evidence, examine thousands of documents, raise funds, obtain authorisations and negotiate with each other with varying degrees of cooperation". Many other reasons for the apparent delay are set out in the decision. It was not until late in the peace that the respondent raised the question of statutory estoppel pursuant to s12(2) of the Act. That resulted in the applicant having to file lengthy submissions and an affidavit (with extensive attachments) on 21 September 1999, in support of its opposition to the respondent's submission for estoppel and in relation to the question of whether the Tribunal lacked jurisdiction. Both those questions were ruled in favour of the applicant and the matter proceeded to substantive hearing in October 1999. The Tribunal's substantive decision is quite detailed. It provides background information about the applicant and the original application for review of the respondent's decision(s) to deny access sought. Of relevance is its reference to access being sought to "several thousand documents dating from 1960 to 1978". The original request for access was narrowed to a list of documents identified broadly as Items 1 to 7 inclusively, but apparently the process involved more than 30,000 documents and subsequent filing by the respondent of further documents pursuant to s37 of the _Administrative Appeals Tribunal Ac_t 1975.

SECT 66 Freedom of Information Act 1982

Tribunal may make recommendation that costs be available in certain

(a) a person makes application to the Tribunal under section 55 for review

of a decision constituting the action to which the complaint relates; and

(b) the person is successful, or substantially successful, in his

the Tribunal may, in its discretion, recommend to the Attorney-General that

the costs of the applicant in relation to the proceedings be paid by the

(2) Without limiting the generality of the matters to which the Tribunal may

have regard in deciding whether to make a recommendation under subsection (1),

(a) the question whether payment of the costs or any part of the costs would

(b) the question whether the decision of the Tribunal on review will be of

(c) the question whether the decision of the Tribunal on review will be of

commercial benefit to the person making application to the Tribunal; and

(d) the reasonableness of the decision reviewed by the Tribunal.

(3) The Attorney-General may, pursuant to a recommendation of the Tribunal

under subsection (1), authorize the payment of costs to an applicant.

4. The applicant was represented by Mr T Mijatovic whilst Mr P Macliver of counsel represented the respondent. Each provided a written outline of submissions. Mr Mijatovic filed two affidavits in support of the applicant's application for a recommendation for costs:

(i) Affidavit sworn on 7 September 2001 with attachments TM1 to TM7; [Exhibit A1]

(ii) Further affidavit sworn on 23 October 2001 with attachments TM1 & TM2 [Exhibit A2]

It is noted that all the documents filed pursuant to the preliminary matter and the substantive matter were available to the Tribunal should they have been required.

5. At the conclusion of the hearing on 23 October 2001, parties were each given time in which to file further submissions addressing the question of whether members of the applicant association were potentially liable for the debts incurred by it. The applicant filed further submissions to this effect on 7 November 2001 to which the respondent responded on 16 November 2001.

1. The Tribunal recommend to the Attorney General that the applicant's costs of these proceedings be paid by the respondent.

2. The Tribunal recommend to the Attorney General that the applicant's costs of the respondent's unsuccessful application to strike out the application, heard on 22 September 1999 be paid by the respondent.

3. The Tribunal recommend to the Attorney General that the applicant's costs of the hearing on 11 to 15 October 1999 be paid by the respondent.

4. The above costs be paid on an indemnity basis by the respondent and/or the costs be taxed as if the application had proceeded in the WA Supreme Court.

7. The applicant also sought another order but withdrew it at the hearing on 23 October 2001.

8. There is no dispute that the applicant made an application under s55 of the Act for review of the respondent's decision not to grant access to all or part of documents identified as coming within the applicant's classifications of Items 1 to 7.

9. It is also common ground that the applicant was successful, or substantially successful, in its application for review.

10. Subsection (2) of s66 of the Act requires the Tribunal, in exercising the discretionary power conferred by subsection (1), to have regard to the four matters specified in paragraphs (a) - (d) of subsection (2). It is recognised that those four matters are not exhaustive of the matters that may be taken into account by the Tribunal in exercising its discretionary power (c/f WAJ and Commonwealth Ombudsman and Grace Rosemary Brown, [1999] AATA 13 at paragraph 9, particularly in relation to the reference to Deputy President Hall's observation in Re Paterson and Department of Arts, Heritage and Environment (No 2) (1985) 8 ALD 27 at 234 concerning the discretionary power conferred by S66(1) of the Act):

"The nature of the discretion conferred upon the Tribunal is quite inconsistent, in my view, with any notion of a presumptive entitlement to costs in every case of success. Parliament clearly intended that the Tribunal should weigh the circumstances of each case, in the light of the specified and any other relevant considerations, in order to decide whether or not a recommendation should be made."

The specified matters of s66(2)

S66(2)(a) - FINANCIAL HARDSHIP

11. Under this provision the Tribunal is required to have regard to "the question of whether payment of the costs or any part of the costs would cause financial hardship to the applicant". In Re Cosco and Treasury (1999) 54 ALD 366, Deputy President Forgie made reference to Deputy President Todd's decision in Re Lordsvale Finance Ltd and Department of Treasury (N0. 4) (1986) 12 ALD 327 at 329 where the learned Deputy President said that:

"To show financial hardship it is not enough for the applicant to assert that if it is obliged to meet its own costs it will deplete the funds otherwise available to it to pursue its objects: Re Paterson and Department of Arts, Heritable and Environment (No 2) (1958) 8 ALD 227 at 238."

It was fundamental to the applicant's submissions in this regard that payment of legal costs for these proceedings (that is, the FOI application), would leave it short for the pursuit of further legal action to benefit its members. For the above reasons that is not a matter that can be taken into account in considering the question posed by s66(2)(a) of the Act.

12. The applicant is an incorporated association which claims to represent approximately 450 persons who formerly resided on Christmas Island and were later resettled to mainland Australia between 1970 and 1980, pursuant to the Commonwealth Resettlement Scheme. In his affidavit of 7 September 2001, Mr Mijatovic deposed that "the applicant is a non-profit association which acts in the interests of its members and whose purposes are the promotion of and investigation of claims of former residents and employees of Christmas Island and the Commonwealth of Australia". He further deposed that the applicant "association has paid some $80,000 in legal costs and disbursements for the period 1994 to 2001 for the recovery of documents, and tribunal proceedings relating to this action or [for] the inspection of documents in the possession of the respondent".

13. There is no specificity by the applicant as to the actual costs incurred by it "in relation to the proceedings" as that expression is understood. In Re Cosco and Treasury (1999) 54 ALD 366, Deputy President Forgie noted that it is only costs incurred by the applicant which relate to the proceedings in respect of the applicant. In the Tribunal's opinion it is incumbent on the applicant to specify actual costs incurred by it since its application for review on 17 July 1996, but excluding costs incurred in relation to requests or deliberations since that date which led to internal review. The Tribunal is of the opinion that as things stand it does not have sufficient evidence of the relevant costs pursuant to S66 of the Act. Should the Tribunal decide to make a recommendation of the kind sought by the applicant, then it will make an appropriate order to allow identification of actual costs within the purview of s66 before making that recommendation.

14. The respondent submitted that the applicant's sole purpose is to act as a conduit through which funds raised from its members are used to defray legal costs incurred. Those costs relate exclusively to claims or actions on behalf of members for compensation for alleged wrongs arising from their former residence and employment on Christmas Island. The applicant is an incorporated association, incorporated under the provisions of the Associations Incorporation Act 1987 [WA] ("Associations Incorporation Act"). There is no evidence before the Tribunal that the applicant possesses any assets (although it must have a bank account and may be owed money by its members) or has incurred any liabilities other than those relating to unpaid legal fees. There is evidence that the applicant has incurred considerable legal costs, some of which remain unpaid and which in whole or part may be contingent upon the happening of future events. Because of the lack of specificity in this respect it is not possible to say to what extent those costs may relate to the proceedings before this Tribunal.

15. It was submitted on behalf of the respondent and the Tribunal accepts, that as an incorporated association pursuant to the provisions of the Associations Incorporations Act, its officers (including committee members), trustees and members are not liable for the liabilities of the association. The exception is in respect of liabilities incurred prior to incorporation. However, as submitted by the respondent, that has no relevance since the applicant was incorporated on 29 July 1994, well before the commencement of proceedings to which this application relates.

16. The purpose of the applicant is to raise funds for specific purposes, which include proceedings before this Tribunal. The members or officers of the applicant are not personally liable for the applicant's debts incurred in circumstances generally understood by the applicant's legal advisers. Therefore, no financial hardship to the applicant can result from it incurring legal costs. There may well be varying degrees of financial pressure experienced by some or all members of the association should they be called upon to make a contribution toward costs, which contribution was unexpected and adjudged by those members as onerous. However, that is not the financial hardship of the applicant, an incorporated association. The applicant submitted that notwithstanding the limited liability afforded under s12 of the Associations Incorporations Act, members of its committee have a fiduciary duty to act in the interests of the members generally, breach of which could involve those persons in a personal liability. Gino Da Pont, Charity Law in Australia and New Zealand, Oxford University Press, at page 374-5 states:

"Legislation in all Australian jurisdictions and New Zealand makes provision for the incorporation of associations [cites the various Acts]. Eligibility for incorporation is available only to associations established for purposes other than making profits ...

The main benefits of incorporation for an association stem largely from its consequent status as a separate legal entity, in particular limited liability for its members and the ability to hold property and engage in transactions in its own name."

17. McGregor-Lowndes et al, Legal Issues for Non-Profit Associations, LBC, 1996, under the heading "Incorporated Associations" at pages 30-31 states:

"An incorporated association is a body corporate and the members of its committee are acting on its behalf in a fiduciary capacity. They are in and analogous position to the directors of a company and are likely to be subject to similar common law and equitable duties although there is little if any direct authority on this point.

... it is generally accepted that the categories of fiduciary relationships are not closed and although once again there is little direct authority, it would appear that ... the position of members of the committee ... is similar to that of directors of a company, and they will also be considered to be fiduciaries. As fiduciaries, they must act in good faith in what they consider to be the best interests of the persons to whom the fiduciary obligation is owed and must exercise reasonable care and diligence."

18. The Tribunal accepts that the committee or management of the applicant has a joint and several fiduciary duty toward the members generally and that breach of the duty may result in a personal liability. There is however, no evidence before the Tribunal that the committee or managers have breached their fiduciary duty in pursuing the proceedings before this Tribunal - quite the contrary, they had a duty so to act and seek access to documents which they believed may have assisted their members' cause. There is no evidence before the Tribunal supporting a conclusion that the applicant's committee members, jointly or severally, may have personal liability for debts of the association. And because the association can only pay costs relating to these proceedings from funds raised from its membership, there can be no financial hardship to the applicant arising as a result of any such payment.

19. In Re WAJ and Commonwealth Ombudsman and Grace Rosemary Brown, [1999] AATA 13, Senior Member Hotop considers the relevant authorities in this respect. Those are the judgment of Beazley J in Cashman & Partners v Secretary, Department of Human Services and Health [1995] FCA 1730; (1995) 61 FCR 301 (at 307) and Re Lianos and Secretary, Department of Social Security (No 2) [1985] AATA 281; (1985) 9 ALD 43, a decision of Deputy President Hall. Those are authority for the proposition that it is not the reasons of the Tribunal that matter but rather that the relevant benefit must flow from disclosure of documents containing information with respect to issues of widespread public interest and concern. That is, the question is concerned with the consequences or results of the application for review.

20. In his decision on merit in this matter (AAT 617/2000) Deputy President Barnett makes reference to having taken into account "the public interest in providing access to documents" and the "public benefit motive of the applicant". The learned Deputy President later implies that the public benefit to which he had regard is the possible benefit arising from being given access to documents which may assist the applicant in the conduct of its class action. As mentioned, there are some 450 members of the applicant association. They each have in common the fact that they once resided on Christmas Island and were relocated to mainland Australia. The decision on merit (AAT 617/2000) of 27 July 2000 contains some detail about the relevant documents for which access was sought. In the opinion of the Tribunal (as now constituted), that detail is indicative of access being sought to documents containing a range of information, much of which might be considered personal to various individual members of the applicant (and others of like background). That information may be of limited interest except to the extent that it assists the applicant association in pursuing its motive. Indeed, in the opinion of the Tribunal the documents for which access was sought may have a curiosity value to some members of the public but that is not sufficient to say that the documents themselves would have widespread public interest. In the opinion of the Tribunal, whilst there may be widespread public interest should the contemplated class action come before the court, there is no evidence that the documents themselves generally deal with issues of widespread public interest or concern.

S66(2)(c) - COMMERCIAL BENEFIT TO THE APPLICANT

21. Despite the applicant submitting that "the decision of the tribunal is of substantial commercial benefit to the applicant and to its members in that it exposes or provides supporting documentation with respect to the applicant's members' claims ...", that conclusion is not necessarily apparent from the evidence. Indeed, it is the Tribunal's understanding that such a finding would run counter to the applicant's claim. Senior Member Dwyer said as much in Re Toomer and Department of Primary Industries and Energy [1991] AATA 31; (1991) 22 ALD 164 at 181:

"As I said in Re Jacobs (No 2), S66(2)(c) and (d) of the Act operate in reverse to paras (a) and (b) and set out circumstances which may disqualify an applicant from obtaining a recommendation as to S66(1). The fact that a litigant may obtain private commercial benefit was said in Cuneo v Rumfiled at 1368 to be a possible reason to deny a litigant his request for attorney fees."

22. In the present matter it is doubtful whether the applicant could obtain a commercial benefit from having access to the various documents ruled upon by the learned Deputy President in AAT 617/2000. The benefit, if any, would flow to the applicant's members, not the applicant, which is a separate legal entity. That ultimate benefit, if any, would be personal to those members, being a form of recompense or compensation for having been deprived of liberty or having been subjected to unreasonable physical and or mental discomfort as a result of their former occupations and residency on Christmas Island and any wrongs suffered as a result of that and their subsequent relocation. In the opinion of this Tribunal, none of those benefits, should they occur, can be attributed "commercial" benefit status derived by the applicant.

S66(2)(d) - THE REASONABLENESS OF THE DECISION REVIEWED BY THE TRIBUNAL

23. Paragraph (d) of s66(2) of the Act requires the Tribunal to have regard to "the reasonableness of the decision reviewed by the Tribunal." It is well established that the "decision" referred to in s66(2)(d) is the decision of the relevant agency that the Tribunal has the jurisdiction to review: see Re Paterson (No 2) (above), at 240; Cashman & Partners v Secretary, Department of Human Services and Health [1995] FCA 1730; (1995) 61 FCR 301, at 306-307, 309. The relevant decision is, except where the initial decision was made by the responsible Minister or by the principal officer of the relevant agency, the decision made on internal review, pursuant to s54(1) of the Act. In the present case, the relevant decision to be considered for the purpose of applying s66(2)(d) of the Act is not immediately apparent. In fact, because of the protracted interaction between the applicant from the time it first wrote to the respondent's delegate on 14 July 1995 and the matter coming to hearing on 11 October 1999 there was ongoing internal review as the respondent identified actual documents to which access was sought. This resulted in a number of internal review decisions that were collectively the subject of the review on merit in October 1999.

24. It is recognised that the matter referred to in s66(2)(d) of the Act does not include any decision of the respondent prior or subsequent to the reviewable decision. Such prior or subsequent decision or conduct may, however, be a relevant consideration to be taken into account for the purpose of exercising the general discretion conferred by s66(1) of the Act.

25. In terms of the conduct of the parties, which is not directly on point under s66(2)(d) although relevant to s66(2) generally, the fact of the present case is that after considerable negotiation and apparent goodwill being demonstrated by the respondent, the parties agreed to seven separate categories of documents in relation to which initial access was denied. Subsequent to commencing proceedings before this Tribunal, and following further evidence, many of the documents or parts thereof to which access was denied were released.

26. In _Re Sullivan and Department of Industry, Science and Technology and Australian Technology Group Pty Ltd (_Unreported: Decision No 10889B, 20 March 1998), the Tribunal, for the purpose of applying s66(2)(d) of the Act, said (at p.14):

"It is ... necessary to evaluate the extent to which it was reasonable for the (respondent) to claim exemption for the documents it did when it made the reviewable decision. In this respect, regard may be had to the grounds upon which the claims of exemption were made."

27. The reasonableness, or otherwise, of the reviewable decision is, for the purposes of s66(2)(d) of the Act, to be judged objectively - that is, according to the standards of a reasonable person. It is not a question of the reasonableness of the conduct of the respondent that is in issue here but rather, the reasonableness of the decision under review. The question is not whether the reviewable decision was right or wrong, but rather whether or not there was a reasonable basis for making it. The Tribunal adopts the following remarks of Deputy President Thompson in Re Chan and Department of Immigration and Ethnic Affairs (No 2) (1985) 8 ALN N52 at N53:

"It must be stressed that the test is the reasonableness of the decision, not whether the Tribunal would have decided that it was 'the correct or preferable decision'. The very fact that access has eventually been given to the documents to which the application related raises at least a possibility that the decision might not have been regarded by the Tribunal as the correct or preferable one. But implicit in para (d) of s 66(2) is recognition by parliament that that is not necessarily inconsistent with the decision having been reasonable."

28. The Tribunal is satisfied on the evidence before it that the respondent made a reasonable attempt to identify the documents the subject of the original application for access and to carry out its duty, within the confines of the Act, to grant access or classify documents as exempt. In terms of the reasonableness of the decision or decisions of the respondent not to grant access in whole or part, the decision of Deputy President Barnett (AAT 617/2000) canvasses extensively the reasons of the respondent for withholding access. It is clear from its reasons that where the Tribunal granted access on review, those decisions were generally preferred in the circumstances. It is not apparent, even considering the matter objectively and in the particular factual matrix and circumstances, that a correct decision or correct decisions necessarily obtained in every instance.

29. In the opinion of the Tribunal the decision of the learned Deputy President canvasses the difficulties encountered in the final decision and is supportive of a conclusion that nothing in that decision points to the respondent having been unreasonableness in its decision or decisions concerning access. Also, in the opinion of the Tribunal the reasons of the learned Deputy President are in no way suggestive of any frivolous, biased, irrational or unreasonableness on the part of the respondent in making the original decisions subject to review by the Tribunal. The fact that many of the documents in question were made available for access in whole or part as a result of the hearing is not, of itself, indicative of any lack of reasonableness in the original decision c/f Chan and Department of Immigration and Ethnic Affairs (supra).

30. Although the applicant asserted to the Tribunal during the course of the hearing on merits that the respondent had adopted an obstructive and uncooperative approach, the Tribunal did not delve into those assertions. It did however note that "on the other hand, some officers of the respondent at other times took a very cooperative approach, as when content lists for item 2 were prepared by the respondent beyond the requirements of the Act. The contributions of Ms ... were also most helpful." This of course goes to the conduct of the respondent rather than the reasonableness of its decision or decisions under review. Notwithstanding, granted there were considerable delays between the initial application and the final decision, those delays cannot be sheeted home solely to the respondent. Many of the delays were a consequence of the sheer number of documents falling within the scope of the original request and the need to process those in a manageable way. The respondent had a statutory duty to subject each document to scrutiny before deciding on access. In the opinion of the Tribunal the evidence does not support a contention that the respondent failed in its duty to comply with its responsibilities in an efficient manner, given the nature and extent of the task which befell it consequent upon it receiving the original request.

31. In addition to the matter of conduct discussed above, the applicant submitted that the respondent's application to the Tribunal to have the matter struck out for want of jurisdiction caused it to incur additional and otherwise unnecessary legal costs in defending its application. The Tribunal accepts the submissions of the applicant in this regard. The evidence supports the contention that the issue of access had been agitated for a very lengthy period before the respondent made its strikeout application. And that was well after the Tribunal had fixed the dates for the substantial hearing and within a fortnight or so of that coming on. Those events imposed on the applicant additional and otherwise unnecessary costs. Those proceedings, in October 1999 added nothing to the evidence and submissions made in the merits review later that month (AAT617/2000). The strikeout application involved two matters discussed in the ruling by the learned Deputy President. Those were, on the one hand, the issue of s12(2) and 58(7) of the Act, and on the other, the question of the Tribunal's jurisdiction in particular. Those questions were resolved in favour of the applicant. In the opinion of this Tribunal, the events and circumstances of the protracted preliminary proceedings, which occurred after the original application was made to the Tribunal, provided a basis on which the respondent might question the Tribunal's jurisdiction but not evidently the estoppel issue. However, the respondent's decision to seek the order very late in the peace, at least in temporal terms, was not reasonable having regard to the length of time that the proceedings before the Tribunal had been in progress and when the actual hearing was imminent.

32. Even having regard to the foregoing, in the opinion of this Tribunal, the decision of Deputy President Barnett on 8 October 1999, refusing the respondent's application at least in relation to jurisdiction, was not a decision foreclosed by the facts. Indeed, in the opinion of this Tribunal, that decision was clearly open to the Tribunal and, with respect, a pragmatic and fair decision in the circumstances. The fact that the respondent made the application, in the opinion of this Tribunal, was justified having regard to the respondent's own fiduciary duties concerning procedural matters and their impact on the public purse. However, the timing of the application surprised the applicant and imposed additional and further costs on it, marginal costs that it would not have incurred unless it was forced to defend its position to seek administrative review of the FOI decisions in question. In the Tribunal's opinion, should those particular concerns of the respondent have been aired much earlier in the peace then most likely they would have been resolved without the need of the proceeding on 8 October 1999.

33. It is clear that should the applicant be required to satisfy the first three specific criteria of s66(2) paragraphs (a) to (c) in relation to the costs of the proceedings solely concerned with the Tribunal's ruling made on 8 October 1999, then, for the previously discussed reasons, it could not. However, in the Tribunal's opinion, for the above reasons, the Tribunal would be satisfied in relation to paragraph (d) of s66(2) and, in the circumstances of the proceedings of 8 October 1999, that reason should be given much greater weight relative to the other criteria together.

34. Mr Macliver, for the respondent, submitted that a s66 recommendation must be about the costs of the proceedings before the Tribunal which cannot be dissected such that the Tribunal make a recommendation about only some of those costs. With respect, the Tribunal is of the opinion that the s66(1) expression "the costs of the applicant in relation to the proceedings" would ordinarily be a discrete sum where there was but the one proceeding. In the present instance there was but one proceeding but it was in two discrete parts - the preliminary issue ruled upon on 8 October 1999 and the merits issue decision of 27 July 2000. In the Tribunal's opinion, the applicant incurred separate and identifiable costs in relation to the discrete ruling of 8 October 1999, which costs were otherwise avoidable. For that reason the Tribunal is of the opinion that the expression "the costs of the applicant in relation to the proceedings" should be given a liberal interpretation allowing for dissection of costs when the facts permit. Facts would permit when it was possible to identify separate costs of discrete proceedings as part of the final decision - that is, costs that serve the one objective and not costs serving one or more objectives indifferently. In the opinion of the Tribunal the latter class of costs are incapable of arithmetic dissection although they may be capable of subjective apportionment. In the opinion of the Tribunal it is only those costs capable of objective arithmetic dissection that should be the subject of a recommendation to the Attorney General where the evidence does not support a recommendation in relation to the entire costs of proceedings, as is the case in point.

35. For those reasons, the Tribunal is of the opinion that it should recommend to the Attorney General that the costs of the proceedings solely concerned with the Tribunal's ruling made on 8 October 1999 be paid by the Commonwealth. In this regard the Tribunal remits the matter of the ascertainment of those actual costs back to the parties to decide by consent or if unable to do so, then to be given liberty to apply to this Tribunal to hear further submissions limited to that aspect of the matter.

36. Having regard to the mandatory considerations prescribed by s66(2) of the Act and the Tribunal's finding in relation to each of those considerations, conveniently summarised below, it concludes that:

(a) it is satisfied that payment of the applicant's costs would not cause the applicant financial hardship;

(b) it is not satisfied that the decision of the Tribunal on review will be of benefit to the general public;

(c) it is not satisfied that the decision of the Tribunal on review will be of commercial benefit to the applicant; and

(d) it is satisfied that the decision reviewed by the Tribunal (AAT 617/200 of 27 July 2000) was reasonable. However, it is not satisfied that the decision of the respondent, to subject the applicant to the proceedings related only to the ruling on 8 October 1999, was reasonable. And in the latter regard only, the Tribunal should, pursuant to s66 of the Act, make an appropriate recommendation to the Attorney General, subject to fixing the quantum of the costs of those proceedings alone, that they be paid by the Commonwealth.

37. The Tribunal concludes, subject to the previous qualification concerning the proceedings relating to the ruling of 8 October 1999, that on balance, the considerations relating to the decision of 27 July 2000 (AAT 617/2000) do not support an exercise of the discretion conferred by s66(1) of the Act that would be favourable to the applicant. In addition, having regard to other general relevant considerations (excepting the conduct of the respondent in relation only to its application to the Tribunal to have the matter struck out due to lack of jurisdiction etc), similarly, do not make it appropriate to exercise the s66(1) discretion in the applicant's favour.

38. For the above reasons, subject to a determination in relation to the quantum of costs of the proceedings relating to the ruling of Deputy President Barnett of 8 October 1999, the Tribunal recommends, pursuant to s66 of the Act, that only those costs be paid by the Commonwealth. But in every other respect the Tribunal declines to make a recommendation under s66(1) of the Act that the applicant's costs in relation to the proceedings [resulting in the decision of 27 July 2000 (AAT 617/2000)] before the Tribunal be paid by the Commonwealth.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member

Signed: ............(sgd V Wong)................................

Solicitor & Counsel for the Applicant Mr Tomas Mijatovic

Solicitor for the Respondent Australian Government Solicitor