Matson v Australian Information Commissioner

1. Leave be refused to the applicant to file the interlocutory application dated 20 June 2021 and marked as "MFI-1" in these proceedings.
2. Each party bear their own costs of and incidental to today's hearing in respect of the interlocutory application dated 20 June 2021 and marked as "MFI-1" in these proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J 1 On 8 December 2020 the applicant, Mr Matson, filed an application for extension of time to seek for judicial review of six decisions of the respondent. 2 The parties consented to the matter being determined on the papers, and on 29 April 2021 I made orders to that effect. 3 Judgment was reserved as at 2 May 2021 following the filing of submissions by the parties in accordance with timetabling orders previously made. 4 On 21 June 2021 the Court notified the parties that judgment would be delivered at 10.15am on 23 June 2021. 5 Yesterday (22 June 2021) an interlocutory application was sought to be filed by the applicant in this matter. On its face the interlocutory application was dated 20 June 2021. In Court this morning I marked that document "MFI-1" in these proceedings. 6 On being informed yesterday by the Registry of the Federal Court of the interlocutory application, I made the following orders: 1. The interlocutory application dated 20 June 2021 and sought to be filed by the applicant in QUD 288 of 2020 not be accepted for filing without the leave of the Court. 2. The matter be listed for hearing in respect of whether leave ought be granted at 10.15am on 23 June 2021. 3. A copy of these orders and a copy of the interlocutory application sought to be filed by the applicant be emailed by the Federal Court Registry to the applicant and the lawyers for the respondent. 7 I made these orders in circumstances where it is well-settled that, once judgment has been reserved, it is only in exceptional circumstances that the Court will subsequently give leave to a party to re-open the case. As was pointed out by Heydon J in Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 at 330: Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing. 8 In the present case the applicant has sought to stay judgment in respect of the substantive application, in anticipation of further submissions being made by him (or lawyers he hopes to brief) in respect of the substantive application. This is made clear by the orders he seeks :: 1. A referral certificate be issued in respect of the Applicant pursuant to rule 4.12 of the FEDERAL COURT RULES 2011 (the Rules) for pro bono legal assistance for proceeding QUD288/2020 limited to: a) preparing an "estimate of costs" for legal costs and disbursements, including the professional fees of Senior and Junior Counsel for proceeding QUD 288/2020 in accordance with the COMMONWEALTH LEGAL FINANCIAL ASSISTANCE SCHEMES ASSESSMENT OF COSTS - JULY 2012; b) preparing a "solicitors report" for proceeding QUD 288/2020 in accordance with the COMMONWEALTH LEGAL FINANCIAL ASSISTANCE SCHEMES ASSESSMENT OF COSTS 2012; and c) lodging the said "estimate of costs" and "solicitors report" with the Attorney-General's Department, Financial Assistance Section (the Department), and liaising with the Department for any additional requests and information sought in relation to the Applicant's existing application for legal financial assistance (presently incomplete application) lodged 2 June 2021 for proceeding QUD 288/2020. 2. Proceeding Qud288/2020 be stayed or suspended, including the Applicant's application for an extension of time dated 20 November 2020 and filed 8 December 2020 until such time as: (a) Legal Aid Queensland determine and approve the Applicant's funding grant application dated 8 May 2021 for proceeding Qud288/2021; or (b) The Commonwealth Attorney-General's Department, Financial Assistance Section determine and approve the Applicant's existing application for legal financial assistance (presently incomplete application) lodged 2 June 2021 for proceeding Qud288/2020; or (c) Of the Court's own motion, a referral certificate is issued in respect of the Applicant pursuant to rule 4.12 of the Rule for pro bono legal assistance for proceeding Qud288/2020, including: • advice in relation to the proceeding; and • representation at directions, interlocutory or final hearing or mediation; and • drafting and settling of documents to be used in the proceeding; and • representation generally in the conduct of the proceeding. 3. Proceeding Qud288/2020 be stayed or suspended until such time as the Australian Human Rights Commission makes a finding in relation to the Applicant's complaint dated 10 August 2020 (Australian Human Rights Commission reference: 2020-09716) which alleged a breach of the Applicant's fundamental human rights under articles 7, 9, 14, 17 and 23 of the International Covenant on Civil and Political Rights (the ICCPR) scheduled to the "Australian Human Rights Commission Act 1986". 4. Proceeding QUD 288/2020 be listed for further case management with proceedings QUD 356/2020, QUD 360/2020 and QUD 83/2020, at a date to be fixed. 5. Liberty to apply. 6. Costs reserved. 9 Although the applicant did not seek leave to file this interlocutory application, in circumstances where the applicant is a litigant in person, and as I informed him in Court this morning, I am content to treat the application as seeking both leave, and the orders sought in that document. This approach was not opposed by the lawyers for the respondent. 10 This morning in Court the applicant submitted, in summary, as follows: The respondent is a Commonwealth government agency, and must give weight to Australia's international human rights obligations. The respondent is bound by the Commonwealth's obligation to act as a model litigant as a result of the Legal Services Direction 2017; Both the Court and the respondent could be further assisted in this matter if the applicant were legally represented; His complaint with the Australian Human Rights Commission (AHRC) concerns his lack of legal representation and his arbitrary detention Alternative dispute resolution may be a convenient way forward, and this would be more effective if the applicant were legally represented; There is connectivity between these proceedings and other litigation the applicant has on foot in the Federal Court; and He is impecunious, such that if he were unsuccessful no costs order against him should be made. 11 The respondent submitted, in summary, as follows : The respondent had no views concerning proposed order 1; The respondent opposed a stay of the extension of time proceedings in terms of proposed order 2; The respondent had insufficient material to address proposed orders 3 and 4; and If the respondent were successful, she was content for each party to bear their own costs. 12 Having heard the parties, I consider that leave should not be granted to the applicant to file the interlocutory application. 13 First, as I have already noted, the parties consented to have the application for extension of time determined on the papers. Judgment has been reserved for six weeks, with the intention as advised to the parties to deliver judgment today. I have noted that it is only in exceptional circumstances that the Court will re-open a case once reserved. 14 Second, the parties consented to have the application for extension of time determined on the papers, and all relevant submissions have already been filed by both parties. It would clearly be prejudicial to the respondent to permit new matters to be agitated in supplementary submissions, as the interlocutory application appears to anticipate. I also consider such an approach would be contrary to the overarching purpose of the civil practice and procedure provisions contained in s 37M of the Federal Court of Australia Act 1976 (Cth), and principles of case management articulated by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175. 15 Third, even if leave were granted to the applicant to file the interlocutory application, I consider that it would have no prospects of success. 16 In respect of proposed order 1, I note first that r 4.13 of the Federal Court Rules 2011 (Cth) provides: 4.13 A party has no right to apply for a referral A party is not entitled to apply to the Court for a referral under rule 4.12. 17 As the Full Court observed in Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64: 146. The first complaint is that at no time did the appellants have legal representation and they were disadvantaged as a result. 147. This complaint cannot be upheld and cannot constitute appellable error. Rule 4.13 of the FCRs provides that a party is not entitled to apply to the Court for a referral for legal assistance under r 4.12. The referral power in r 4.12 is discretionary - that is, the Court may refer a party to a lawyer for legal assistance, not must. There is not the slightest doubt that the appellants were disadvantaged in a number of ways in their conduct of the hearing before the primary judge and of the appeal. Their own lack of understanding of the legal process and the sophisticated concepts being argued was abundantly evident. There is little doubt that legal representation throughout would have been of assistance to them. But such an entitlement cannot be guaranteed or provided by the Court... (see also Pallas v Minister for Home Affairs [2019] FCAFC 149 at [28]-[29]) 18 As Colvin J observed in AMV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 99, a party may raise the possibility of a referral and thereby invite the Court to consider the exercise of the discretion under r 4.12 (Fuller v Toms [2012] FCA 27; (2012) 247 FCR 440 at [94]), but it is a matter for the Court as to whether there is a sufficient basis for it to consider whether to exercise the discretion and, if so, whether it should issue a referral certificate. I would in any event refuse to issue a referral certificate under rule 4.12 of the Federal Court Rules in circumstances where: the applicant is an intelligent person who, I understand, has engaged legal representatives in the past in other matters, and clearly knows how to do so (cf observations of Finch v Heat Group Pty Ltd [2014] FCA 236 at [10]); the applicant has not explained why he cannot approach private law firms for an estimate of costs for legal costs and disbursements; the applicant has already filed detailed legal submissions in support of his application for an extension of time; it appears on the face of the interlocutory application that he applied for a funding grant for legal assistance from the Attorney-General's Department after judgment had been reserved; and I query the utility of him having legal representation in a proceeding where judgment was reserved over a month ago. 19 In respect of proposed order 2, the applicant seeks a stay of the application for extension of time proceedings until such time as various legal aid funding requests advanced by the applicant are "determined and approved". 20 As Moshinsky J recently observed in Impiombato v BHP Group Limited [2020] FCA 350: 122. The Court has a wide jurisdiction to stay proceedings in the interests of justice: Obeid v Commissioner of Taxation [2017] FCA 1135 (Obeid) at [2] per Pagone J (and cases there cited); Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 (Websyte) at [53] per Dodds-Streeton J. The Court's power to grant a stay is an incident of its general power to control its own proceedings for which s 23 of the Federal Court of Australia Act provides statutory support. 123. The appropriate approach in considering whether to grant a stay in the interests of justice has been considered in a number of recent decisions, including by the High Court of Australia in Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46 (Zhao) and by the Full Court of this Court in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; (2016) 242 FCR 153 (CFMEU v ACCC)… 21 A number of the principles relevant to consideration of a stay of proceedings in that case (where a stay of civil proceedings was sought pending determination of criminal proceedings relating to the same subject matter) are not applicable here, however I consider the following principles identified by his Honour are relevant in the present case, namely: 125. …[C]ourts have the power to control their proceedings and to order a stay in an appropriate case; it will be appropriate to do so where the interests of justice require such an order: Zhao at [36] per French CJ, Hayne, Kiefel, Bell and Keane JJ; CFMEU v ACCC at [22] per Dowsett, Tracey and Bromberg JJ. 126. …[A] plaintiff is prima facie entitled to have his, her or its civil action tried in the ordinary course and a stay therefore requires justification on proper grounds (with the applicant for a stay bearing the burden of demonstrating proper grounds): see Zhao at [39]; McMahon v Gould at 206 … 133. …[T]he risk of prejudice identified by an applicant for a stay must be weighed against the prejudice that a stay of the civil proceeding would occasion: see Zhao at [47], [50]; CFMEU v ACCC at [22]. … 135. …[E]ach case must be judged on its own merits; the matters that might individually, or in combination, be relevant to the exercise of the discretion are not rigid or closed; the factors identified in the authorities are not a prescriptive or an exhaustive statement of all of the considerations, or the weight to be attached to them: see Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504 (ACCC v CFMEU (first instance)) at [51] per Middleton J (application for leave to appeal dismissed: CFMEU v ACCC). 22 Further, as Jackson J noted in Frigger v Trenfield (No 9) [2021] FCA 652: 7. …As always in matters involving civil practice and procedure the court must exercise the discretion in the way that best promotes the overarching purpose of the civil practice and procedure rules to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976 (Cth) 23 The same points I have just made in respect of proposed order 1 apply equally in relation to proposed order 2 (c). However, I also consider that proposed orders 2 (a) and (b) have no merit in circumstances where: Again, it appears on the face of the proposed interlocutory application that the Legal Aid Queensland funding application and the funding application to the Attorney-General's Department were made after judgment in this case had been reserved; and The applicant proposes orders that a stay be ordered until his funding applications are "determined and approved", where an outcome favourable to the applicant can simply not be assumed in the present circumstances. 24 Overall I consider that a stay in the terms sought by the applicant would be contrary to the case management principles explained in Aon, and the overarching purpose of the civil practice and procedure provisions contained in s 37M of the Federal Court Act. 25 In respect of proposed order 3, I would not be prepared to order a stay of these proceedings pending an outcome of a complaint by the applicant to the AHRC for alleged breach of his "fundamental human rights under articles 7, 9, 14, 17 and 23 of the International Covenant on Civil and Political Rights (the ICCPR). In summary: Claims of the applicant in respect of Arts 2, 7, 9, 14 and 26 of the ICCPR were considered, and rejected, by Rangiah J in Matson v Attorney-General [2020] FCA 1558. Proposed order 3 appears to be an attempt to agitate similar claims. Even assuming that the applicant has a complaint lodged with the AHRC in respect of alleged human rights breaches, this would not in any way act as an impediment to determination of the application for extension of time in this Court. The applicant appears to believe, incorrectly, that the AHRC makes binding "findings", however the outcome of any inquiry by the AHRC has no judicial effect: see Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10, (1995) 183 CLR 245. In any event, as observed by the High Court in Dietrich v R (1992) 177 CLR 292 at 305, ratification of the ICCPR has no direct legal effect upon Australian domestic law, and the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions. Insofar as I am aware, despite signing the ICCPR in 1972 and ratifying it in 1080, the ICCPR has never been adopted into Australian domestic law. It is entirely unclear how any complaint the applicant may have referable to Arts 7, 9, 14, 17 and 23 of the ICCPR would be of any relevance to an application for an extension of time for judicial review of decisions by the Australian Information Commissioner concerning freedom of information complaints of the applicant. 26 Proposed order 3 has no merit. 27 In respect of proposed order 4, there is no utility in listing the present case for case management when all submissions have been filed, judgment reserved, and the matter listed for judgment delivery. Similarly, orders for there to be liberty to apply and costs to be reserved in proposed orders 5 and 6 are redundant in the present circumstances. 28 The submissions of the applicant concerning the model litigant requirements to which the respondent must adhere are not helpful in respect of the present matter. No evidence has been produced to suggest that the respondent has acted in any way in the conduct of this litigation other than in accordance with those requirements. 29 In conclusion, I do not consider that it is appropriate in the interests of justice, or consistent with the overarching provisions of the civil practice and procedure provisions in s 37M of the Federal Court Act, for leave to be granted to the applicant to file his interlocutory application dated 20 June 2021. 30 The general rule is the costs follow the event, however the respondent indicated this morning that, if she were successful, she would be content for each party to bear their own costs of and incidental to today's hearing in respect of the interlocutory application dated 20 June 2021. In such circumstances I am prepared to make an order that effect. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.