FEDERAL COURT OF AUSTRALIA

Gersten v Minister for Immigration & Multicultural Affairs [2000] FCA 922

JOSEPH MORRIS GERSTEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N795 of 1999

JOSEPH MORRIS GERSTEN v AUSTRALIAN FEDERAL POLICE

N 1392 of 1999

JUDGE:          WHITLAM J

DATE:            7 JULY 2000

PLACE:          SYDNEY

On appeal from a decision of the Administrative Appeals Tribunal

constituted by Deputy President B J McMahon

THE COURT ORDERS THAT:

1.                  The applicant and his solicitor Alex Lee pay to the respondent on the indemnity basis its costs of the motion filed in Court on 31 May 2000, including the costs of the hearings on 31 May, 2 June and 14 June 2000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from a decision of the Administrative Appeals Tribunal

constituted by Deputy President B J McMahon

THE COURT ORDERS THAT:

1.      The applicant and his solicitor Alex Lee pay to the respondent on the indemnity basis its costs of the motion filed in Court on 31 May 2000, including the costs of the hearings on 31 May, 2 June and 14 June 2000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

On appeal from decisions of the Administrative Appeals Tribunal

constituted by Deputy President B J McMahon

REASONS FOR JUDGMENT

1                     These two proceedings are appeals by the same applicant under s 44(1) of the Administrative Appeals Tribunal Act 1975 (“the Act”).  They have been allocated to the docket of Wilcox J.  In his absence, I heard various interlocutory applications in respect of which the respondent in each proceeding now seeks a costs order, on an indemnity basis, against the applicant and his solicitor.

2                     The decisions of the Administrative Appeals Tribunal (“the Tribunal”) from which the appeals are brought involve proceedings under Part VI of the Freedom of Information Act 1982 (“the FOI Act”).  Copies of the Tribunal’s decisions were filed with the notices of appeal.  In each matter the Tribunal upheld claims that documents, to which the applicant requested access under the FOI Act, were exempt documents under that Act.  Proceeding       N795 of 1999 relates to the decision of the Tribunal made on 21 July 1999 in respect of such a claim by the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”).  Proceeding N1392 of 1999 relates to the decision of the Tribunal made on           1 November 1999 in respect of such a claim by the respondent, the Australian Federal Police (“the AFP”).

3                     In each matter the documents claimed to be exempt were produced for inspection by the Tribunal.  This meant that, when the appeals were instituted in the Court, those documents were sent to the Court in accordance with s 46 of the Act. 

4                     On 31 May 2000 I heard the first of the applications, to which the present costs application relates.  Each of the respondents applied ex parte for urgent relief.  In support of their applications, they read affidavits of Andras Markus, Andrew Pearson and Greg Peek, all of whom are solicitors employed by the Australian Government Solicitor (“the AGS”).  The effect of their evidence may be shortly stated.

5                     Mr Peek has the carriage of the proceeding N795 of 1999 on behalf of the Minister.  Mr Markus and Mr Pearson had the carriage on behalf the Minister of another proceeding in the Court, N9 of 2000, in which he was a respondent.  That was an appeal by the applicant from a judgment of Katz J dismissing his application for review of a decision of the Refugee Review Tribunal.  Proceeding N9 of 2000 was fixed for hearing before the Full Court on 31 May 2000 at 2.15 pm.

6                     The solicitor for the applicant in these two proceedings and in proceeding N9 of 2000 is Alex Lee.  On 25 May 2000 he filed in proceeding N9 of 2000 an affidavit made by him that day in support of an application to receive “fresh evidence” in that appeal.  In that affidavit Mr Lee deposed that “[o]n or about April he had come into possession of two bundles of documents”, which were the documents to which the claims of exemption related in the Tribunal proceedings that are the subject of the present appeals.  The two bundles were exhibited to his affidavit.  The documents relating to proceeding N795 of 1999 were marked “AL-1”, and those relating to proceeding N1392 of 1999 were marked “AL-2”.

7                     A copy of Mr Lee’s affidavit and copies of the two exhibits were served on the AGS.  Mr Pearson received this material on the afternoon of Friday, 26 May.  The stamp of the Court was not affixed to the copy of the affidavit served, but the serial numbers of proceedings N795 of 1999 and N1392 of 1999 had been handwritten on the heading of that copy of the affidavit.  Mr Pearson noted these annotations.  On Monday, 29 May, Mr Markus perused the affidavit and exhibits in the course of preparation for the hearing of the appeal in matter N9 of 2000 fixed for Wednesday, 31 May.  Mr Markus asked Mr Pearson to provide Mr Peek with a copy of that material.  Mr Peek first saw the exhibits to Mr Lee’s affidavits on the morning of Tuesday, 30 May.  He immediately recognised the documents in exhibit AL-1 as the exempt documents he produced to the Tribunal on behalf of the Minister.

8                     On the afternoon of Tuesday, 30 May, Mr Pearson inspected the documents received by the Court from the Tribunal in these two proceedings.  In proceeding N795 of 1999 the documents were forwarded to the Court under cover of a letter dated 24 August 1999 from the Tribunal’s Deputy Registrar, in which she specified that the documents included the “set of exempt documents produced by the respondent”.  Amongst the documents was a yellow paper envelope clearly marked to indicate that its contents were “FOI exempt” and “not to be given to the applicant”.  Mr Pearson checked the contents of that envelope and noted that exhibit AL-1 appeared to be a copy of the documents in that envelope.  In proceeding N1392 of 1999 the documents were forwarded under cover of a letter dated 21 December 1999 from the Tribunal’s Deputy Registrar, in which she noted that the “documents in the red envelope are subject to an order under subsection 35(2) of the Act.”  Mr Pearson checked the contents of the red envelope and noted that exhibit AL-2 appeared to be a copy of the documents in that envelope.

9                     On 30 May Mr Peek wrote to Mr Lee requesting him to return to the office of the AGS all copies of the documents in exhibit AL-1.  Later that afternoon, at around 4.45pm, Mr Markus telephoned Mr Lee and indicated that the Minister needed an answer “today” to Mr Peek’s request.  Mr Lee said: “You cannot be serious.  It is five to five.  I am going to the doctor.”

10                  Mr Pearson also deposed that the applicant was represented in proceeding N9 of 2000 by two barristers, Mr S C Churches and Mr J A Coombs.

11                  The motions filed in court on the ex parte hearing before me on the morning of Wednesday, 31 May, sought orders that each of the applicant, Mr Lee, Mr Churches and Mr Coombs deliver forthwith to the Registrar of the Court:

“(i)                  all copies of the documents reproduced in Annexures “AL1” and “AL2” to the affidavit of Alex Lee dated 25 May 2000 filed in proceedings N9 of 2000 in his possession or control, including any copies of such documents which have been furnished to counsel briefed for the applicant;

(ii)                   all notes, memoranda, letters and other communications (whether in electronic or written form) containing reference to the contents of the documents referred to in . . . (i) above;”

12                  Section 64(6) of the FOI Act relevantly provides:

            “(6)     . . .  [where] a document . . . [is] sent to the Federal Court of Australia in accordance with section 46 of the Administrative Appeals Tribunal Act 1975, . . . the Court shall do all things necessary to ensure that the contents of the document are not disclosed (otherwise than in accordance with this Act) to any person other than a member of the Court as constituted for the purpose of the proceeding before the Court or a member of the staff of the Court in the course of the performance of his or her duties as a member of that staff.”

13                  The overwhelming inference to be drawn from the evidence read on behalf of the Minister and the AFP was that the copies of the documents in exhibits AL-1 and AL-2 to Mr Lee’s affidavit had been made from the exempt documents sent to the Court by the Tribunal and that their contents had been disclosed to the four persons named in contravention of         s 64(6) of the FOI Act.  Accordingly, I made the orders sought against the applicant and Mr Lee.  I declined to make the orders against counsel on the basis that Mr Lee should seek the return of their copies.  I made the orders “until further order” and stood the proceedings over to 9.30am on Friday, 2 June.

14                  On that return date, Mr M A Robinson of counsel appeared for the applicant and Mr A McAvoy for Mr Lee.  Counsel for the respondents informed the Court that copies of the orders made on 31 May had been faxed that day to Mr Lee’s office and that sealed copies of the orders and of the affidavits relied on at the ex parte hearing had been served on 1 June.  Mr Robinson indicated that the orders had not been complied with and that his client and Mr Lee wished to have the orders “stayed until early next week”.  Counsel for the respondents sought to have the orders continued.  After a short adjournment, Mr Robinson and Mr McAvoy asked that the matter be adjourned to 2pm when Mr Coombs would be available to appear for their clients.  Mr Robinson submitted, in effect, that the continuation of the orders could not be regarded as urgent in view of the fact that the exempt documents in exhibits AL-1 and AL-2 had been filed and used in proceeding N9 of 2000.  He also informed the Court that copies of those documents had been sent overseas.  Importantly, Mr Robinson also stated that at a directions hearing in both these matters on 3 May 2000 senior counsel then appearing for the applicant informed the Court “in plain terms” that the applicant had copies of the exempt documents.  The application for an adjournment to 2pm was opposed, and I refused it.  (Mr McAvoy was given leave to withdraw as his instructions extended only to the adjournment application.)

15                  In support of the continuation of the orders, counsel for the respondent relied on the same affidavits as were used in the ex parte hearing.  Mr Robinson adduced evidence from Mr Lee both orally and by affidavit made earlier that day.  Mr Lee was also cross-examined.

16                  Mr Lee said that the applicant used an office at his firm’s premises where he worked as a consultant “on occasion”.  (The applicant is a legal practitioner who practices as a barrister in federal courts.)  Mr Lee engaged a woman called Eunice Sim to assist in the preparation of the appeal papers in these two matters.  She attended the District Registry to obtain copies of the documents forwarded to the Court by the Tribunal.  Ms Sim was given access to the exempt documents, and Mr Lee made the copies of those documents available to the applicant.  He knew that they were the very documents to which access had not been granted by the Tribunal because they were exempt documents under the FOI Act. Mr Lee denied any knowledge of an order by the Tribunal under s 35(2) of the Act.  He said that the documents were obtained “by accident, not misdeed”, and that he was “doubtful”, but “did not know” whether he should have them.  Accordingly, he said, he had obtained an opinion from Mr Leo Grey of counsel.

17                  An opinion from Mr Grey dated 18 April 2000 was received in evidence.  In a letter just over a page long addressed to the applicant, Mr Grey confirms his instructions to advise “whether discontinuance of your Federal Court action (N1392/99) would require disclosure of the fact that the allegedly exempt documents in question had come into your possession and, if so, whether that would in turn require the documents to be returned.”  Mr Grey advised, in effect, that the appeal could simply be abandoned and concluded that “there would be no basis on which your possession of any of the documents need [sic] to be raised.”

18                  Mr Lee said that, in addition to the copies of the exempt documents exhibited to his affidavit and filed in proceeding N9 of 2000, he had forwarded copies to the applicant, Mr Churches, Mr Coombs and to another barrister in Melbourne.  He knew that the applicant had sent copies to a lawyer in Florida with the intention that they be provided to a committee of the United States House of Representatives.  Mr Lee annexed to his affidavit of 2 June copies of requests to several officials of the United States Government for the production of documents made by that committee’s chairman on 31 May 2000.

19                  The re-examination of Mr Lee was interrupted by the lunch adjournment.  However, after lunch, Mr Robinson announced that the applicant and Mr Lee would comply with the orders made on 31 May.  The continuation of the orders was no longer opposed.  Counsel for the respondents then sought a costs order, on an indemnity basis, against the applicant and Mr Lee.  The AGS had given notice that such an order would be pursued.  Mr Robinson asked for an opportunity to put on evidence in opposition to any costs order.  I acceded to that request, fixed a timetable for the filing of evidence, and adjourned the costs application for hearing on 14 June.

20                  On the hearing of the costs applications, counsel for the respondents relied on all the evidence given to date in the proceedings and on one further affidavit from each of Mr Markus and Mr Peek.  They also tendered transcript of the directions hearing before Wilcox J on 3 May 2000 and of a motion before the Full Court in proceeding N9 of 2000 on 12 May 2000.  Mr Robinson tendered a letter dated 13 June 2000 from the Tribunal’s District Registrar to the applicant.  Mr Markus and Mr Peek were cross-examined. 

21                  The letter from the Tribunal’s District Registrar stated that no order under s 35(2) of the Act had, in fact, been made in the proceedings the subject of the appeal in proceeding N1392 of 1999.  The sentence indicating otherwise in the letter from the Tribunal’s Deputy Registrar dated 21 December 1999 had been included in error.

22                  The transcripts are instructive.  On 3 May senior counsel then appearing for the applicant told Wilcox J that the applicant had obtained documents “but not through FOI” and that “we have copies of some documents that are the subject of the exemption”.  On 12 May the Full Court heard a motion to vacate the hearing of proceeding N9 of 2000 fixed for the then current Full Court sittings.  During that hearing the same senior counsel told the Court that “documents, the subject of claim for exemption . . . have come into the possession of the applicant”  He later referred to these documents as the “X file”.

23                  Mr Peek appeared for the Minister at the directions hearing on 3 May.  Mr Markus was present in court during the Full Court hearing on 12 May.  It is hardly necessary to say so but, since they were each cross-examined to suggest otherwise, I am quite satisfied that neither apprehended at such time that the applicant had obtained actual copies of the exempt documents forwarded by the Tribunal to the Court.

24                  Notwithstanding the continuation of the orders, Mr Robinson opposes the award of any costs in favour of the respondent on the basis that the orders should not have been made and, in the alternative, that the orders having been made ex parte the applicant would, in any event, be entitled to have them discharged on the basis of the well-known principle stated by Isaacs J in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681-682.

25                  I appreciate that it is unusual to grant a mandatory injunction on an interlocutory basis.  However, Parliament has given the plainest indication in s 64(6) of the FOI Act of the importance it attaches to the access regime established by that Act.  In his submissions Mr Robinson entirely ignored that provision.  Instead, he submits that the determination of costs in favour of the respondents on these motions may well constitute a res judicata on the issues in the principal proceedings.  I regret to say that I just do not understand that submission.  Proceeding N795 of 1999 purports to state fifteen question of law said to be raised on the appeal, and proceeding N1392 of 1999 purports to state eighteen such questions of law.  I have not dealt with any of these issues.

26                  The form of the orders was, in my view, appropriate.  It was designed restore the status quo and place the documents under the control of the Court.  No good reason to delay was suggested.  The opportunity for distribution to third parties unconnected with this litigation (which has, in fact, occurred) was obvious.  The AGS’s solicitors as government lawyers have a special responsibility to be astute to act promptly in such cases.  They were, in my opinion, not only justified in making, but obliged to make, an ex parte application at the earliest moment.

27                  So far as the suggested failure to make a full disclosure of the relevant facts is concerned, I reject that submission.  It should not have been made.  I do not know what instructions senior counsel had on either 3 May or 12 May.  However, I agree with counsel for the respondents that Wilcox J would appear to have been misled on 3 May.  In fact, it appears that such copies of the exempt documents as the applicant had in his possession had been obtained through a perversion of the FOI process.  I also accept their submission that one would need to be a clairvoyant to read into what was said on 12 May what must have happened in the Court’s Registry when access to the exempt documents was improperly given.

28                  A moment’s reflection should have caused Mr Lee and the applicant to realize that access had been given in error.  The proper course was not to make copies and, if Ms Sim had already done so, the copies should have been promptly returned.  Mr Grey does not appear to have been told how the documents were obtained.  The object of the FOI Act is spelt out in     s 3(1) of that Act.  Support for that object is undermined by the underhand and disreputable behaviour of the applicant and Mr Lee in these proceedings.  The applicable principles governing the award of costs on an indemnity basis are explained by Sheppard J in Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225.  His Honour emphasized that such an order always depends on the particular facts and circumstances.  This is, in my view, the clearest possible case, and it is appropriate to exercise my discretion to make such an order.

29                  So far as the power to order costs against a solicitor, who is not a party to the proceedings, is concerned, it has been most usefully explained very recently by a Full Court of this Court in Levick v Deputy Commissioner of Taxation [2000] FCA 674.  I am conscious that such power must be exercised sparingly and with great caution.  In particular, it should be noted that this is not a case where such an order is necessary to protect the solicitor’s client.  Indeed, although the applicant has not given evidence, Mr Lee appears to have been content to act as a mere cipher and not to exercise his own professional judgment in the conduct of this litigation.  That is a serious dereliction of his duty to the Court.  Accordingly, in both matters, I shall make the orders sought against both the applicant and his solicitor.

Associate:

Dated:             

N795 of 1999

N1392 of 1999