The respondent did not oppose disclosure of the documents as so much of the contents of the document were already visible in the partially redacted version. The respondent's position was not a concession on any of the issues in dispute, specifically not a concession or admission that the documents were not exempt from disclosure.

After obtaining copies of the documents from the respondent, the applicant indicated to the Tribunal that she wished the hearing to resume regarding concerns with SAAS' conduct during proceedings.

The applicant also applied for costs on the ground that she would not have incurred legal costs had SAAS realised earlier that she already had the partially redacted version of the restricted document.

Held, dismissing the application with no order as to costs:

• In reviewing the decision by the Ombudsman, the Tribunal does not have the power to make determinations about the decision or conduct of SAAS.
• There was no longer utility in the proceedings as, due to the disclosure of the documents to the applicant, the applicant had obtained the outcome she had sought.
• The conduct of SAAS was not reflective of such behaviour that would justify an award of costs. SAAS was not aware that the applicant had obtained a partially redacted version of the document prior to the hearing when disclosure was made and it cannot be said that they ought to have been aware that she possessed this document.
• The applicant's maintained interest in proceeding to a determination even after the documents had been disclosed to her indicates that she may not have avoided legal fees even if the documents had been disclosed to her earlier.

Administrative Review - Administrative Tribunals - Freedom of Information Act 1991 - Person aggrieved by a determination of the Ombudsman - Inadvertent disclosure of exempt documents - Utility of Proceedings - Application dismissed

Administrative Tribunals - Procedure - Jurisdiction, powers and generally - Statutory powers - Order for costs - Presumption that parties are to bear their own costs - Entitlement to costs

South Australian Civil and Administrative Tribunal Act 2013 ss 35, 48, 57, 58

REM & PVR v Department for Child Protection [2020] SACAT 9

South Australian Housing Trust v Brady & Milera [2018] SACAT 2

The respondent: Mr J Metzer, Crown Solicitor's Office

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 48

1. This is an application for review of an FOI Determination of the Ombudsman dated 6 December 2019 in respect of certain documents held by SA Ambulance Service (SAAS).
2. At the full hearing on 25 June 2020, it became apparent that Ms Steel had a version of one of the documents that the Ombudsman had held to be exempt, namely a referee check recording information obtained from a referee, Ms Lawton (the Referee Check).
3. The version of the Referee Check that Ms Steel had (the partially redacted version of the Referee Check) contained some redactions and had been photocopied with a post-it note over the first page, but most of its contents could be read.
4. How and when the partially redacted version of the Referee Check was provided to Ms Steel is unclear. The following is what I can ascertain from the material on file.

(a) On 19 December 2019, in response to the Determination, SAAS sent Ms Steel a partially redacted version of a different document, called the Selection Panel Report. Some exempt material was not redacted.

(b) In January 2020, SAAS wrote to Ms Steel noting this mistake and providing a revised version of the Selection Panel Report.

(c) All other documents were released in full apart from the Referee Check (and a second referee check also held to be exempt).

(d) At the final hearing before me on 28 October 2020, Ms Steel said that SAAS had also sent her the partially redacted version of the Referee Check, in December 2019.

(e) Ms Steel corrected this in an email to the Tribunal on 2 November 2020; she said that having looked through her documents, the partially redacted version of the Referee Check was "supplied by the Ombudsman following SACAT's direction dated 5 March 2020."

(f) There was no direction dated 5 March 2020; I believe Ms Steel means the Direction dated 24 February 2020, sent to the parties on 4 March 2020, which extended the time for these proceedings to be commenced, and directed that the decision-maker provide the Tribunal with relevant documents as required by s 35 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act).

(g) In response, the Ombudsman filed a book of s 35 documents. It contained the partially redacted version of the Referee Check. This book of s 35 documents was emailed to SACAT; this email is addressed only to SACAT.

(h) SACAT forwarded this to SAAS's solicitor, Mr Metzer at the Crown Solicitor's Office; this email is addressed only to him.

(i) Shortly after, on 14 April 2020, Mr Metzer contacted the Tribunal about the s 35 documents; he noted that the Ombudsman had included the referee checks, and that as these were in issue in these proceedings, they should not be provided to Ms Steel.

(j) The file note of this conversation records that neither SACAT nor the Ombudsman had served this book of documents on Ms Steel, and that service would be held until the next directions hearing.

(k) The next directions hearing was held before me on 28 April 2020. As I said in the Direction that day (at paragraph 4):

I note that Volume 2 of the 'section 35' documents provided by the Ombudsman mistakenly includes two exempt documents at issue in these proceedings. Those two documents cannot be provided to Ms Steel unless and until the Tribunal orders disclosure, but the other documents in the Volume 2 bundle are to be provided to her. I will arrange for that to be done by the Tribunal.

(l) The 'two exempt documents' to which I referred were the partially redacted version of the Referee Check, and the other referee check.

(m) Those two documents were specifically excluded from the s 35 documents that the Tribunal sent to Ms Steel on 30 April 2020.

1. So, the partially redacted version of the Referee Check was mistakenly included in the book of s 35 documents provided to the Tribunal by the Ombudsman, but I am unable to ascertain how or when it was provided to Ms Steel.
2. As mentioned, the fact that Ms Steel had the partially redacted version of the Referee Check became apparent during the hearing on 25 June 2020.
3. When this became apparent, Mr Metzer requested a brief adjournment of the hearing, which was granted, and he sought instructions as to disclosure of the Referee Check in full, and as to disclosure of the Selection Panel Report in so far as it contained material from the Referee Check.
4. The respondent's position, conveyed to the Tribunal and to Ms Steel at the resumption of the hearing some minutes later, was that disclosure of those documents was no longer opposed.
5. As I understood it, the respondent took this position specifically because so much of the contents of the Referee Check were already visible in the partially redacted version that Ms Steel had that there was no practical point in not providing the balance.
6. As I understood it, the respondent's position was not a concession on any of the issues in dispute, specifically not a concession or admission that the documents were not exempt from disclosure.
7. I adjourned the matter to allow the respondent to provide the documents to Ms Steel. I directed Ms Steel to inform the Tribunal in writing whether she was content with what she received, and if so, to request to withdraw her application. I considered that to be the more appropriate course, rather than the Tribunal making any findings or determinations about documents that were now to be disclosed.
8. In other words, once the documents were disclosed, there would no longer be a need for the Tribunal to review the decision that had resulted in them being withheld.
9. On 26 June 2020, Mr Metzer emailed to Ms Steel (copied to the Tribunal):

(a) a copy of the Referee Check without redactions, except two redactions of the name of a person to whom Ms Steel's skill and experience were compared; and

(b) a copy of the Selection Panel Report without redactions of the information relating to Ms Steel, but still redacting the names of, and information relating to, the other applicants for the employment position for which Ms Steel had also applied (other than the name of the successful applicant, which was not redacted).

...the decision to provide these documents has been taken because a near-complete copy of the referee check was wrongly provided to you in the volume of documents prepared by the Ombudsman. The referee checks had been found to be wholly exempt by the Ombudsman, and they should not have been included in that volume. However, SAAS recognises that the practical consequence of that wrongful disclosure is that SAAS is no longer able to maintain a claim of confidentiality in the referee check as a whole.

It is on that basis that the referee check document, and the paragraph of the Selection Panel report relating to it, is now being provided.

1. On 8 July 2020, Ms Steel emailed the Tribunal, saying that she had received the documents, but that she was continuing to liaise with Mr Metzer "regarding concerns I have with SAAS' conduct in the SACAT proceedings that I commenced against SAAS."
2. Ultimately, Ms Steel indicated to the Tribunal that her concerns had not been resolved and that she wished the hearing to resume.
3. The matter came back before me on 28 October 2020. I heard from Ms Steel and Mr Metzer about whether anything remained to be determined in the proceedings; in my view, nothing does, and I set out my reasons below.
4. Ms Steel also applied for costs. Ms Steel and Mr Metzer made their submissions about that at the hearing on 28 October 2020. With their consent, I have also considered the 'without prejudice save as to costs' correspondence that passed between Ms Steel's solicitor and Mr Metzer. My determination on costs is also set out below.

1. In the decision under review, the Ombudsman determined that the Selection Panel Report was partially exempt and that the Referee Check was wholly exempt.
2. The Tribunal's task on review was to determine whether the documents were or were not exempt.
3. If the Tribunal determined that they were exempt in the way determined by the Ombudsman, then the Tribunal would affirm the Ombudsman's decision.
4. If the Tribunal determined that they were not exempt, then the Tribunal would set aside the Ombudsman's decision and order that the documents be disclosed to Ms Steel.
5. The disclosure of the documents to Ms Steel on 26 June 2020 achieved the latter outcome without the Tribunal needing to determine the issue.
6. Had I needed to determine that issue, then before doing so I would have resumed the full hearing and given Ms Steel the opportunity to complete her submissions.
7. However, once the documents were disclosed, there was no reason to determine the issue.
8. In legal terms, there was no longer any 'utility' in the proceedings, i.e. nothing to be achieved from making a determination that had not already been achieved.
9. The Tribunal's determination would have no wider purpose. If the Tribunal made a decision that differed from the Ombudsman's decision, that would not mean that the Ombudsman had acted wrongly, only that he had reached an incorrect legal conclusion.
10. This was not a review of the decision made by SAAS, which had gone on review to the Ombudsman, so if the Tribunal made a decision that differed from the Ombudsman's decision, that would not say anything about SAAS's decision (except, impliedly, that SAAS too had reached an incorrect legal conclusion), let alone anything about SAAS's conduct.
11. The Tribunal has a specific, limited statutory jurisdiction, to conduct an administrative review of a decision made by an administrative decision-maker.
12. The Tribunal is not a court, especially not a superior court having wide inherent powers, and powers at common law and in equity, to make determinations about the lawfulness or unlawfulness of particular behaviour or decisions.
13. In that regard, I respectfully adopt what Senior Member Rugless said in REM & PVR v Department for Child Protection [2020] SACAT 9.
14. In that case, the decision under review was superseded by a later decision, meaning there was no longer any point in the Tribunal reviewing the original decision. The applicants disagreed, wanting a review of the Department's conduct in making the superseded decision in the first place.
15. Senior Member Rugless said (at paragraphs 43-47) that the Tribunal does not have the wider jurisdiction exercised by the superior courts (eg the Supreme Court of South Australia) on judicial review, who:

are acting in a supervisory role over the decision making powers of government departments or agencies by giving them guidance as to the legality of their decisions to ensure that they stay within their powers.

1. As regards the Tribunal's review of a decision, Senior Member Rugless concluded (at paragraph 66):

If the decision has effectively come to an end, or has been superseded by a later decision which reverses that decision, then, as submitted by the respondent, there is no practical relief that the Tribunal can afford to the applicants on the merits review. Consequently, pursuing the review proceedings would be futile.

1. In Ms Steel's case, the decision that the documents were exempt has been superseded by the disclosure of the documents to her.
2. There is no remaining purpose in reviewing the superseded decision. In particular, the Tribunal's review of the Ombudsman's decision would not entail:

(a) any consideration of any decision or conduct of SAAS, during the FOI process or in these proceedings;

(b) any determination about the legality of any decision or conduct of SAAS;

(c) any declaration about any future decision or conduct of SAAS; or

(d) any declaration about any other documents or about any classes of documents.

1. For those reasons, I consider that these proceedings could not result in any outcome that has not already been achieved by the disclosure of the documents, and that a continuation of these proceedings to a determination would be futile. For that reason, the application will be dismissed.
2. This does not say or imply anything about the merits of the application.

1. Ms Steel says that she has incurred $7,802.15 in legal fees in these proceedings. She applies for costs on the ground that she would not have incurred these fees had SAAS realised earlier that she already had the partially redacted version of the Referee Check.
2. I infer that if SAAS had realised this before the hearing on 25 June 2020, then it would have responded in the same way as it did during the hearing on 25 June 2020, and disclosed the documents in question, for the practical reasons described above.
3. So, some or all of Ms Steel's legal fees might have been avoided if SAAS had realised, earlier in the proceedings, that Ms Steel had the partially redacted version of the Referee Check.

1. The Tribunal's power to order one party to proceedings to pay the costs of another party to the proceedings is set out in ss 57-58 of the SACAT Act.
2. The starting point is that in any proceedings before the Tribunal, parties bear their own costs. This is the general rule in Tribunal proceedings; an award of costs is the exception.
3. As Justice Hughes said in South Australian Housing Trust v Brady & Milera [2018] SACAT 2 (at [12]):

The 'traditional formula' is that costs follow the event i.e. a successful litigant is entitled to recover their costs. The legislature has established a statutory regime for costs in this Tribunal that takes a different starting point.

1. So, if the Tribunal had set aside the Ombudsman's decision and ordered the documents to be disclosed to Ms Steel, Ms Steel would not have been entitled to costs.
2. Or, if this had been a review of SAAS's decision and the Tribunal had decided that SAAS's decision was incorrect, Ms Steel would not have been entitled to costs.

1. As set out above, SAAS realised in January 2020 that in December 2019 it had mistakenly provided Ms Steel with a version of the Selection Panel Report, in which certain exempt material was not redacted.
2. The Referee Check is a different document. There is no indication that SAAS provided any version of it to Ms Steel. As set out above, the best indication is that she received it, somehow, via the section 35 documents provided by the Ombudsman.
3. As set out above, Mr Metzer realised that the Referee Check had been included in the s 35 documents provided to the Tribunal by the Ombudsman, but Mr Metzer took specific action, by contacting the Tribunal, for that to be removed before the s 35 documents were served on Ms Steel.
4. This indicates that SAAS had no reason to think that Ms Steel had the Referee Check.
5. As also set out above, the only evidence of s 35 documents being provided to Ms Steel is via service by the Tribunal after the directions hearing on 28 April 2020, at which time the Referee Check was specifically removed and not sent to Ms Steel.
6. On Ms Steel's case, she must have had the partially redacted version of the Referee Check before the directions hearing on 28 April 2020, because she says she referred to it at that directions hearing, and submits that it was apparent at that time that she had it.
7. I disagree that this was apparent at the directions hearing; if it had been, then I would not have said in the Direction that the two exempt documents, i.e. the referee checks, had to be removed from the s 35 documents before service.
8. The Direction refers (at par 5) to Ms Steel seeking "disclosure of the remainder of the other 'Referee Check", but this is consistent with Ms Steel being aware of some of its contents from the Selection Panel Report, and does not necessarily imply that she had a version of the Referee Check itself.
9. So, I do not consider that SAAS, from the directions hearing on 28 April 2020 or at any earlier time, was actually aware that Ms Steel had the partially redacted version of the Referee Check.
10. Therefore, I do not consider that SAAS maintained an objection to disclosure of the full version in the face of an awareness that Ms Steel had a redacted version.
11. This only leaves a question about whether SAAS ought to have been aware, earlier than 25 June 2020, that Ms Steel had the partially redacted version of the Referee Check.
12. The answer, in my view, is no.
13. The fact that SAAS inadvertently disclosed an incorrect version of the Selection Panel Report to Ms Steel is no indication that SAAS disclosed any version of the Referee Check to her; and there is no evidence of SAAS doing so.
14. SAAS would have had no reason to think that Ms Steel had the referee checks via the s 35 documents, as demonstrated by Mr Metzer contacting the Tribunal to have them removed from the s 35 documents before service.
15. As for the directions hearing on 28 April 2020, I have already referred to the Direction. True, we discussed what documents Ms Steel had and what she still wanted, but not, in my view, such that Mr Metzer ought to have known that Ms Steel had the partially redacted version of the Referee Check.
16. The fact that the directions hearing was by phone meant that only Ms Steel could see what documents she had.
17. In this decision, I am referring to the Selection Panel Report and the Referee Check in such a way as to try to avoid confusion, but the discussion at the directions hearing was not so clear cut, and any confusion was, in my view, understandable.
18. An award of costs might have been warranted if SAAS had:

(a) known that Ms Steel had the partially redacted version of the Referee Check;

(b) despite that, continued to object to disclosure of the full version of the document; and

(c) belatedly changed its position about that at the hearing, after Ms Steel had incurred legal fees.

1. That is not what happened. On the contrary, SAAS decided to disclose the documents as soon as it realised that Ms Steel had the partially redacted version of the Referee Check.
2. Even if SAAS ought to have realised this sooner, not realising was purely inadvertent. SAAS was not turning a blind eye, or being reckless, as to what documents Ms Steel had. SAAS was careful about what she had, as demonstrated by SAAS:

(a) in January 2020, seeking to correct its mistake in having provided an incorrect version of the Selection Panel Report to Ms Steel in December 2019; and

(b) early in these proceedings, seeking to ensure that Ms Steel was not served with the referee checks that the Ombudsman had included in the section 35 documents sent to the Tribunal.

1. Aside from all that, I am not persuaded that Ms Steel would necessarily have avoided legal fees even if the documents had been disclosed to her earlier, given that she actually maintained an interest in proceeding to a determination even after the documents were disclosed to her on 26 June 2020.
2. For all of those reasons, I am not satisfied that the circumstances warrant departure from the usual rule that the parties bear their own costs.

1. The application is dismissed, with no order as to costs.