Federal Court of Australia

Patrick v Secretary, Department of Climate Change, Energy, the Environment and Water [2025] FCA 754

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 40.51 of the Federal Court Rules 2011 (Cth), the maximum costs that may be recovered in this proceeding:

(a)    as between the applicant and the first and second respondents, collectively, is $20,000; and

(b)    as between the applicant and the other party (Snowy Hydro Limited), is $20,000.

2.    The costs of the applicant’s interlocutory application under r 40.51 be costs in the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STELLIOS J:

1    This matter arises from an interlocutory application under r 40.51 of the Federal Court Rules 2011 (Cth) for an order specifying the maximum costs as between party and party that may be recovered for the proceeding. The maximum costs order that is sought is $1.

2    The interlocutory application is made in a statutory appeal pursuant to s 172 of the Administrative Review Tribunal Act 2024 (Cth) from Patrick and Secretary, Department of Climate Change, Energy, the Environment and Water (Freedom of information) [2024] ARTA 7 (27 November 2024), a decision of the Administrative Review Tribunal made on 27 November 2024 (ART Decision). The parties have agreed that the interlocutory application should be determined on the papers without a hearing.

3    The ART Decision relates to applications under the Freedom of Information Act 1982 (Cth) (FOI Act) for access to documents relating to the design and construction of a new underground power station known as the “Snowy Hydro 2.0 Project”.

4    For the reasons below, I consider it appropriate to make an order specifying maximum costs as between party and party that may be recovered for the proceeding. However, I do not consider that $1 is an appropriate maximum costs order. Instead, corresponding orders under r 40.51 to cap the maximum costs at $20,000 should be made as between the applicant and the first and second respondents (collectively) and, separately, as between the applicant and the other interested party to the proceeding (Snowy Hydro).

Background

5    The background facts are drawn from the affidavits filed by the parties and the ART’s reasons. I have read those affidavits except for passages that have been overtaken by an agreed statement of facts. These facts were not contested.

6    Snowy Hydro is an energy generation business which, amongst other things, owns and operates the Snowy Mountains Hydro-electric Scheme situated in New South Wales. It is an unlisted public company, limited by shares, and incorporated under the Corporations Act 2001 (Cth). Pursuant to the Snowy Hydro Corporatisation Act 1997 (Cth), the Snowy Mountains Hydro-electric Authority was corporatised and its assets, liabilities and employees were transferred to Snowy Hydro. The shares in Snowy Hydro are held by the Commonwealth which is the sole shareholder. The Minister for Finance and the Minister for Climate Change and Energy (the Shareholder Ministers) represent the Commonwealth as the shareholder in Snowy Hydro.

7    Snowy Hydro is a Government Business Enterprise and is subject to the Commonwealth financial governance and accountability framework; namely, the Public Governance, Performance and Accountability Act 2013 (Cth), the Public Governance, Performance and Accountability Rule 2014 (Cth) and the Commonwealth GBE Governance and Oversight Guidelines, Resource Management Guide No. 126 published by the Department of Finance.

8    As a Government Business Enterprise, Snowy Hydro is required under the Guidelines to provide quarterly progress reports. Under the Guidelines, these reports are confidential to the Shareholder Ministers, their departments and advisors. Additionally, the Commonwealth and Snowy Hydro entered into an Equity Subscription Agreement, the terms of which require the parties to keep certain information confidential. That includes information given by one party to the other under that agreement where the disclosing party marked the information as confidential. Snowy Hydro was also required under that agreement to provide progress reports with respect to financial performance and operations. In 2023, Snowy Hydro undertook a comprehensive review of the Snowy Hydro 2.0 Project.

9    Pursuant to the FOI Act, the applicant requested, from the first and second respondents, access to documents relating to the Snowy Hydro 2.0 Project. Some of the requested documents were released in full or in part. The documents in contention before the ART were described in the decision of the ART as follows:

(1)    Snowy Hydro 2.0 Project updates and reports prepared by Snowy Hydro;

(2)    Documents relating to the Snowy Hydro 2.0 Project prepared by the Department of Climate Change, Energy, the Environment and Water; and

(3)    A 10-page letter from Snowy Hydro to the Shareholder Ministers dated 29 August 2023.

Redacted versions of these documents were provided to the applicant.

10    The decisions under review before the ART were: (i) a decision of a delegate of the first respondent made on 3 July 2023, affirmed on internal review on 1 August 2023; and (ii) a decision of a delegate of the second respondent made on 22 November 2023.

11    Before the ART, the first and second respondents claimed that the documents in contention are exempt from disclosure under s 45 of the FOI Act. Subsection 45(1) provides:

(1)    A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.

12    In the alternative, the first and second respondents claimed that they were exempt under s 47(1)(b) or, in the further alternative, that they were conditionally exempt under s 47G and that access would be contrary to the public interest under s 11A(5) of the FOI Act.

13    Subsection 47(1) provides:

(1)    A document is an exempt document if its disclosure under this Act would disclose:

(a)    trade secrets; or

(b)    any other information having a commercial value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed.

14    Subsection 47G(1) provides:

(1)    A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information:

(a)    would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; or

(b)    could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the administration of matters administered by an agency.

15    The ART Decision concluded that the documents were exempt under s 45 and that the decisions under review should be affirmed.

16    In reaching that conclusion, the ART at paras [25]–[29] rejected the applicant’s argument that, as a matter of construction, s 45 did not cover business information which is protected by ss 47 and 47G of the FOI Act.

17    The applicant appeals to this Court from the whole of the ART Decision pursuant to s 172 of the ART Act. The questions of law set out in the Notice of Appeal are as follows:

I.    Is the exemption under Section 45 of Freedom of Information (‘FOI’) Act 1982 enlivened with respect to information requested by an FOI applicant if that information is of the type normally protected from disclosure by section 47 (documents disclosing trade secrets or commercially valuable information) or section 47G (business documents)?

II.    Noting the Parliament granted a right of access to business information and documents under the FOI law where its disclosure is not contrary to the public interest, is it within power for the executive government to enter into a contracted confidentiality obligation that oust the public interest test (to the same business information and documents) under Section 45.

18    As will be further explained, in his written submissions on this interlocutory application, the applicant appeared to narrow the scope of the second question.

evidence

19    The following affidavits were filed by the parties:

(1)    Affidavit of Rex Patrick affirmed on 9 January 2025;

(2)    Affidavit of Alexander Robert Parsons, an AGS lawyer with carriage of the matter for the first and second respondents, affirmed on 23 April 2025;

(3)    Affidavit of Rex Patrick affirmed on 24 April 2025; and

(4)    Affidavit of Malcolm Stephens, a solicitor with conduct of the matter for Snowy Hydro, sworn on 28 April 2025.

20    Following the filing of the affidavits, the parties advised, on a no-admissions basis and by agreement, that the following material was not read on the interlocutory application:

(1)    Paragraph [6] and annexure RLP-6 to the affidavit of Rex Patrick affirmed on 24 April 2025; and

(2)    Paragraphs [23]‍–‍[25] of, and pages 269‍–‍470 of annexure MS-1 to, the affidavit of Malcolm Stephens sworn on 28 April 2025.

21    Accordingly, the affidavits were read except for that material.

22    On 15 May 2025, the parties filed a statement of agreed facts for the purposes of s 191 of the Evidence Act 1995 (Cth). That section provides that “evidence is not required to prove the existence of an agreed fact” and “evidence may not be adduced to contradict or qualify an agreed fact” (s 191(2)) in circumstances where “the agreed fact is stated in an agreement in writing signed by the parties or by Australian legal practitioners, legal counsel or prosecutors representing the parties and adduced in evidence in the proceeding” (s 191(3)(a)). An “agreed fact” is defined to mean “a fact that the parties to a proceeding have agreed is not, for the purposes of the proceeding, to be disputed” (s 191(1)).

23    The filed statement of agreed facts was signed by the applicant, and by solicitors for the first and second respondents and Snowy Hydro.

24    The facts agreed for the purposes of this proceeding were as follows:

(1)    The applicant had an interest in public scrutiny of the Snowy Hydro 2.0 Project before he started his “Transparency Warrior” business, and is pursuing the FOI request underlying the present proceeding on his own behalf, rather than for any “client” of the Transparency Warrior business.

(2)    In the period between 1 July 2023 and 30 June 2024, the confidentiality exemption in s 45 of the FOI Act was claimed by agencies in response to 250 FOI requests, representing approximately 1.5% of all exemptions claimed in that period. These statistics are similar to those in previous years.

Relevant principles

25    Rule 40.51 provides:

40.51    Maximum costs in a proceeding

(1)    A party may apply to the Court for an order specifying the maximum costs as between party and party that may be recovered for the proceeding.

26    There is no dispute about the principles to be applied to an exercise of discretion under r 40.51. In Houston v New South Wales [2020] FCA 502, Griffiths J at [17] summarised the position in the following way:

The discretion is to be exercised judicially, having regard to all the relevant circumstances. Those circumstances include the nature of the relief sought, the complexity of the litigation and the interests of the parties in both prosecuting and defending the litigation, whether the applicant’s claims are reasonably arguable, whether a party would otherwise be forced to abandon a proceeding if such an order were not made, whether there was a public interest element to the proceeding, the costs which are likely to be incurred in the proceeding, the timing of the maximum costs application and whether the party opposing the making of the orders has been uncooperative and/or delayed the proceedings.

27    His Honour emphasised that those factors were not exhaustive. In Australians for Indigenous Constitutional Recognition Ltd v Commissioner of the Australian Charities and Not-for-profits Commission [2021] FCA 435, Thawley J added the following factors at [10]:

•    the likely duration of the proceedings overall and the length of any trial;

…

•    the basis upon which legal representatives are acting, for example, if the legal representatives for the applicant are acting on a pro bono basis … ;

•    hether the applicant has a pecuniary interest in the outcome of the proceeding; and

•    … the apparent merit of the application.

28    As his Honour said, the weight each factor carries will vary according to the particular circumstances: at [9]. I also accept what Griffith J said in Houston at [18] that the exercise of discretion under r 40.51 seeks to displace “the normal rule” that costs are awarded to the successful party to compensate against the expense to which it has been put.

Consideration

Factors in favour of an r 40.51 order being made

29    There are a number of factors which militate in favour of an exercise of discretion to make an order under r 40.51.

30    First, I accept the applicant’s submission that there is a public interest dimension to the proceeding. It is true, as the first and second respondents submit, that “proceedings are not to be characterised as public interest litigation merely because they involve ‘elements of public law or the judicial review of the exercise of executive power’”, or merely because “persons other than the applicant may have an interest” in the outcome (Houston at [26]‍–‍[27] (Griffiths J), references omitted). As noted in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [30] (Gaudron and Gummow JJ), the category of “public interest litigation” is a “nebulous concept”, unless it is given “further content of a legally normative nature”: see also McHugh J at [71]. However, those observations have limited application in this proceeding instituted by an applicant with no direct private interest in the outcome and which involves the proper interpretation of an exemption provision of the FOI Act.

31    The objects of the FOI Act include:

    “to give the Australian community access to information held by the Government of the Commonwealth by … providing for a right of access to documents” (s 3(1)(b));

    “to promote Australia’s representative democracy by contributing towards the following: (a) increasing public participation in Government processes, with a view to promoting better-informed decision-making; (b) increasing scrutiny, discussion, comment and review of the Government’s activities” (s 3(2)); and

    “to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource” (s 3(3)).

32    By providing a legally enforceable right to obtain access to documents that are not exempt documents (FOI Act s 11), the FOI Act operates in support of the constitutional system of representative and responsible government. As the applicant highlighted, the judgment of Gaudron, Gummow and Hayne JJ in Egan v Willis (1998) 195 CLR 424; [1998] HCA 71 at [42] emphasised the importance of freedom of information legislation to the system of responsible government:

In Australia, s 75(v) of the Constitution and judicial review of administrative action under federal and State law, together with freedom of information legislation, supplement the operation of responsible government …

33    The correct interpretation of s 45 of the FOI Act, and its relationship with ss 47 and 47G, contribute to the proper functioning of that system of government.

34    A correct understanding of s 45 is important not only to prospective FOI applicants, but also to Ministers and government agencies in their administration of the FOI Act. It is an agreed fact that, in the period between 1 July 2023 and 30 June 2024, the confidentiality exemption in s 45 of the FOI Act was claimed by agencies in response to 250 FOI requests, representing approximately 1.5% of all exemptions claimed in that period. It is further agreed that these statistics are similar to those in previous years. The number of applications to which the s 45 confidentiality exemption has applied is not insignificant.

35    The characterisation of this litigation as “public interest litigation” is accentuated when the FOI application relates, as it does in this case, to the activities of a Government Business Enterprise undertaking a public infrastructure project. I accept the applicant’s argument that there is public benefit in oversight of the Snowy Hydro 2.0 Project. While the outcome of the appeal might not determine access to the claimed documents, it will determine questions that bear on the correctness of how s 45 has been, or is to be, applied to the review of those access decisions. This question of application, viewed in light of the purpose of the FOI Act and its role in supporting representative and responsible government, gives the public interest litigation “content of a legally normative nature”.

36    Nonetheless, while public interest is a factor of “some significance”, it is not “necessarily decisive”: Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 at [45] (Bennett J).

37    Secondly, I accept that the first and second respondents, as officers of the Commonwealth exercising public power, have an interest in resolving the proper construction and operation of s 45, and that such a factor can impact the exercise of the Court’s discretion in making costs orders: Environment Council of Central Queensland Inc v Minister for the Environment and Water (No 2) [2024] FCAFC 97 at [26]‍–‍[29] (Mortimer CJ).

38    Thirdly, I accept that the questions to be considered on appeal by the Court are confined, or likely confinable with appropriate amendment of the Notice of Appeal, and are unlikely to involve any serious factual dispute that would require time-consuming fact-finding processes. The parties agree that the hearing before the Court is likely to take no more than one day.

39    The first and second respondents submitted that:

[T]he second question of law goes to whether the Commonwealth has the power to enter into commercial contracts which include confidentiality arrangements. On its terms the question seeks to impugn at large that practice, apparently by implication to be derived from the FOI Act. A finding that it is beyond the Commonwealth’s capacity to include confidentiality agreements in contracts would have far-reaching implications for Commonwealth administration. If the applicant intends some more confined question, such as the effect of lawful confidentiality clauses to the application of s 45 FOI Act, he will need to amend his application.

40    In his written submissions in reply, the applicant submitted that the first and second respondents had misconstrued the nature of the proceedings:

The applicant does not seek to limit the ability of the executive to enter into confidentiality agreements – the ability to do so is important – rather as the grounds of appeal in the Notice of Appeal [at 1.c.] for question 2 articulate, the applicant seeks only to clarify that the limits/boundaries of such a private law contractual arrangements are such that they cannot oust a right granted by the Parliament.

41    While the terms of question 2 and ground 1(c) in the Notice of Appeal might require amendment to reflect the precise ground being advanced, it is apparent that the applicant does not seek to challenge the capacity of the Commonwealth to enter into contracts containing confidentiality agreements.

42    Fourthly, the applicant does not have a direct private interest in the outcome of the proceeding: King v Jetstar Airways Pty Ltd [2012] FCA 413 at [9] (Perram J); cf Houston at [28] (Griffiths J). It was noted by the respondents that the applicant charges fees for providing FOI services under the name “Transparency Warrior”. The services include FOI training and assistance to make and litigate FOI requests. Additionally, it was noted by the first and second respondents that “the applicant’s ‘Project Argus’ work (in which the applicant provides pro bono FOI support to independent politicians) is sponsored and funded by the Optical Superstore”. Given these activities, it was submitted by the first and second respondents that:

It is not unreasonable to expect that the applicant’s business or undertaking (including his reputation) would be bolstered by success in Federal Court litigation of this kind – particularly if the Court’s ultimate finding has the effect of restricting the efficacy of commercial confidentiality agreements in an FOI or other “transparency” context. The decided Tribunal cases in which the applicant seeks documents frequently involve government procurement matters. The Court can infer that success in this proceeding will be beneficial to the applicant in continuing to prosecute his Transparency Warrior work.

43    Snowy Hydro put forward similar arguments.

44    It is an agreed fact that the applicant had an interest in public scrutiny of the Snowy Hydro 2.0 Project before he started his “Transparency Warrior” business, and is pursuing the FOI request underlying the present proceeding on his own behalf, rather than for any “client” of the Transparency Warrior business. Thus, any benefit that the applicant might gain from this proceeding is necessarily indirect in nature. In my view, any indirect pecuniary interest or reputational benefit that might accrue to the applicant from success in this appeal is too speculative and remote to be given appreciable weight.

45    Fifthly, the application under r 40.51 was made at the first opportunity in the Notice of Appeal from the ART Decision, giving the respondents sufficient notice of the potential for an order to be made.

46    Sixthly, I accept that a factor to consider is the relative exposure of the parties to an adverse costs order. To date, the applicant is self-represented and indicates in written submissions an intention to conduct the proceeding as a litigant in person. If that position remains, there would be a significant disparity in the impact of a usual costs order. If the respondents are successful, they could recover their costs personally from the applicant (there is nothing in the evidence to suggest that an adverse costs order will be satisfied by a third party); if the applicant is successful, the respondents would not be exposed to a liability for the applicant’s legal costs.

47    Seventhly, the applicant submits that he will withdraw the appeal without an order under r 40.51. The strength of this assertion can be assessed by considering three other factors:

(1)    As already mentioned, there is no direct pecuniary outcome for the applicant in this appeal. That tends to neutralise the possibility of a prospective gain that might justify taking on the risk of an adverse costs order in the absence of a r 40.51 order.

(2)    I accept the thrust of the applicant’s argument that the Court’s application fee, along with the hearing fee and transcription fee, would impose a financial burden on the applicant which is not insubstantial.

(3)    The applicant has provided limited information about his financial position. Annexed to his affidavit of 9 January 2025 is a redacted extract from his annual tax return for 2022-23 which shows in summary form a taxable income of $113,916. He deposes in his affidavit that his tax return for the 2023-24 income tax year is yet to be lodged but that it is anticipated that his income will be similar to the 2022-23 tax year. In his affidavit of 24 April 2025, he also estimates that his total assets (excluding superannuation), minus liabilities, are less than $1 million.

48    In relation to the applicant’s income, the first and second respondents argue that the information provided does not indicate financial vulnerability. Snowy Hydro submits that the information from the tax return extract “tells the Court virtually nothing about the Applicant’s financial capacity”. It was submitted that the tax return extract says nothing about the details underlying the taxable income, such as investments, deductions, trust distributions and liabilities, that might affect the applicant’s capacity to satisfy a costs order. I agree that there is limited evidence about the applicant’s income from which to draw inferences with any confidence about the applicant’s capacity to satisfy an adverse costs order if the order were made on the usual costs basis.

49    In written submissions, Snowy Hydro also argued that the applicant had not disclosed his assets, and relied on Perram J’s observations in McVeigh v Retail Employees Superannuation Pty Ltd [2019] FCA 14 at [15] that “if the Court does not know what his asset position actually is then it has no way of gauging whether a costs capping order is necessary or at what level it should be set at”. As indicated, the applicant subsequently deposed to his net asset position. While that evidence might diminish the significance of Perram J’s observations, nonetheless I consider that the unsubstantiated information has significant limitations for the purposes of drawing factual inferences with any confidence.

50    However, I consider that there is sufficient evidence to support an inference that the applicant is likely to withdraw the appeal if he were faced with the usual costs rule. In his affidavit, Mr Parsons deposes that the legal costs of the first and second respondents in this proceeding are likely to be $60,000 ($50,000 in solicitor fees and $10,000 in counsel fees). He further deposes that, if successful, he expects an entitlement to recover $45,000 from the applicant based on the assumption that just over two-thirds of the Australian Government Solicitor’s fees and all of counsel’s fees would be recoverable.

51    In his affidavit, Mr Stephens estimates that Snowy Hydro’s costs are likely to be at least as much as the costs for the first and second respondents, if not higher, given that Snowy Hydro is represented by a commercial law firm. That estimate took into account the efforts that would be made by the respondents to minimise duplication of work where reasonably possible. Snowy Hydro submitted that the usual rule of thumb is that 70% of solicitor’s fees and 100% of counsel fees are typically recovered. Applying a 75% recovery rate overall to $60,000 results in an approximate recovery of at least $45,000.

52    Thus, even on a party/party basis, the potential costs liability for the applicant is considerable. With no prospect of direct pecuniary benefit, it is a reasonable inference to draw that the applicant is likely to withdraw the appeal if faced with the ordinary costs rule.

53    The discontinuance of proceedings for fear of an adverse costs order is a matter of “serious concern”: Maletic v Comcare [2016] FCA 1111 at [19] (Collier J). While “[i]t would not be unusual that fear of exposure to costs acts as a deterrent to litigation” (Corcoran at [41] (Bennett J)), this factor takes on more weight when there is no countervailing prospect of direct financial gain (Corcoran at [50] (Bennett J)).

54    However, importantly, that is not to say that the applicant is likely to withdraw the appeal if an order were made under r 40.51 setting the maximum costs at an amount higher than $1. That is not the way the argument was put. The applicant’s submission was that “[w]ithout a protective cost order, the applicant will withdraw the appeal”. Additionally, because of the diminished state of the evidence on the applicant’s financial position, it could not confidently be concluded that the applicant will withdraw the appeal unless it is set at $1. These matters go to the weight of this factor, and also will be relevant to the conclusion below.

Factors against a r 40.51 order being made

55    First, I have already mentioned the limited evidence from which to draw safe inferences about the applicant’s capacity to satisfy an adverse costs order. While there is sufficient information to draw an inference that the applicant is likely to withdraw the appeal if an order is not made under r 40.51, it cannot be said with any confidence that he would not be prepared to continue with the appeal if the amount were set at an amount higher than $1. In other words, the applicant has not established that, if the order were made, the amount should be set at $1.

56    Secondly, the respondents argue against an order being made under r 40.51 because the questions of law to be determined by the Court lack merit. Ahead of the hearing of the appeal, I have not engaged in close analysis of the questions to be determined. However, there are difficulties which will need to be overcome by the applicant.

57    One difficulty identified by the respondents is s 32 of the FOI Act which provides:

A provision of this Part by virtue of which documents referred to in the provision are exempt documents, or are conditionally exempt:

(a)    shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents, or are conditionally exempt; and

(b)    shall not be construed as not applying to a particular document by reason that another provision of this Part of a kind mentioned in paragraph (a) also applies to that document.

58    As noted in the ART Decision at [29], a Full Court of the Federal Court said in Austin v Attorney-General’s Department (1986) 12 FCR 22 at 26 (Fisher, Sheppard and Burchett JJ):

The unqualified application each exemption is intended to have is confirmed by s 32 which excludes any restrictive implication from the terms of any other exemption.

Each exemption is to be given the meaning its own terms fairly convey.

59    There is also difficulty in the terms of s 45(2) which expressly provides that s 45(1) “does not apply to a document to which subsection 47C(1) (deliberative processes) applies” in certain specified circumstances. In that respect, the drafters turned their minds to the circumstances in which s 45(1) would not apply to documents to which s 47C(1) applies. The premise of s 45(2), reflected in the rule in s 32, is that s 47C(1) otherwise would apply.

60    In relation to question 2, it is unclear on the face of the Notice of Appeal what the nature and scope of the proffered limitation is. As mentioned earlier in these reasons, the applicant in reply indicated that the question is narrower than it appears. However, it remains to be seen precisely what that question involves.

Conclusion

61    On balance, I am satisfied that I should make an order under r 40.51. That is primarily because the applicant seeks to agitate questions in the public interest, the absence of a direct benefit to him from this proceeding, the utility of the first and second respondents having a judicial determination of the questions to be addressed in this appeal, and the importance of the FOI disclosure provisions in supporting the constitutional system of government.

62    However, I am not satisfied that the applicant has established that the quantum of the order should be $1. Indeed, an order specifying the maximum costs to be $1 is tantamount to ordering that the amount should be $0 or that each party bear their own costs. As Yates J said about a proposed cap of $0 in McGinn v Australian Information Commissioner [2024] FCA 1185 at [77], in a passage quoted in Snowy Hydro’s submissions:

The effect of such an order would be to insulate the applicant from all risks of the litigation she has commenced. This is not the intended purpose of an order made under r 40.51. Such an order would be manifestly unjust to any respondent who is an unwilling party to the litigation and who reasonably incurs legal costs in conducting its defence.

63    The question then is what the appropriate amount should be? The first and second respondents submit that their costs should be capped at no less than $30,000. Snowy Hydro submits that its costs should be capped at no less than $45,000. I do not consider that either amount is reasonable. In particular, Snowy Hydro’s suggested cap is set at the estimated minimum amount of recovery on a party/party basis. If r 40.51 is to achieve it purposes, it must be given a meaningful operation.

64    While the assessment is necessarily impressionistic and imprecise, in my view, an appropriate maximum order should be set at $20,000 for the first and second respondents (combined) and $20,000 for Snowy Hydro. While the applicant intends to litigate in person, corresponding orders in favour of the applicant should be made capping recoverable costs at $20,000 in relation to the respective respondents.

65    In setting that amount, I have taken account of the following matters:

(1)    I have sought to balance the evident purpose of r 40.51 of the Rules “to limit the exposure of a party to an adverse costs order where the particular circumstances justify the exercise of the discretion” with the need for the applicant to be “at some material financial risk in the event that [he] fails in the proceeding and suffers an adverse costs order” (Doctors for the Environment (Australia) Inc v National Offshore Petroleum Safety and Environmental Management Authority [2025] FCA 598 at [20] and [28] (McElwaine J)).

(2)    While I have not considered the merits in great detail, or reached even a preliminary view, there are apparent difficulties with the applicant’s position on the questions to be determined by the Court.

(3)    While there is a public interest to be ventilated, the weight of that interest must be balanced against the difficulties with the applicant’s arguments on the merits.

(4)    It would not be consistent with the purpose of the provision to set a cap equivalent to what has been estimated to be a recoverable amount on a party/party basis (approximately $90,000 in total). Nonetheless, there should be some relation between the amount set under r 40.51 of the Rules and the estimated party/party costs if an order were not made: Maletic at [34] (Collier J).

(5)    Despite the limited information available on the applicant’s financial position, an excessive amount would likely be prohibitive for the applicant, although it is unclear what that prohibitive amount would be. An offer was made to the applicant on 12 March 2025 by the first and second respondents to cap their recoverable costs at $30,000. It was made clear that the offer would not bind Snowy Hydro and that the applicant would need to liaise directly with Snowy Hydro in relation to a separate costs capping agreement. The applicant rejected the offer, stating that he could not proceed on that basis, and suggested that each party should meet their own costs. There was no further negotiation. There is no evidence that the applicant sought to negotiate with Snowy Hydro. That might have been because $30,000 was already prohibitive, or perhaps because Snowy Hydro, if open to negotiation, was likely to offer an amount in the same range as, or greater than, $30,000. Because further negotiations did not take place with any of the respondents, it is difficult to infer a tipping point, above $1, at which the applicant would withdraw. Additionally, because of this uncertainty, I do not consider that the lack of a counteroffer by the applicant precludes me from considering an alternative order under r 40.51: cf Houston at [44] (Griffith J). It is within the Court’s discretion to make an order it considers appropriate in the interests of justice: r 1.32.

(6)    The issues to be resolved are essentially legal arguments: see Tickle v Giggle For Girls Pty Ltd [2023] FCA 553 at [62] (Bromwich J).

(7)    On the one hand, the respondents are unwillingly put to the expense of defending the appeal. However, on the other hand, there is no suggestion that the respondents “cannot afford financially to continue the proceedings if an order is made capping recoverable costs” at the level I have set: Corcoran at [55] (Bennett J). At the very least, the impact of an unfettered costs order will cause greater prejudice to the applicant than it would to the respondents: King at [11] (Perram J). The respondents are in a better position to absorb the costs of the proceeding in excess of the costs cap: see Doctors for the Environment at [17] (McElwaine J). While there will be unfairness on the respondents as a result of the order, I agree with Perram J in King that it “is an unfairness, in part, that r 40.51 is premised upon”: at [20].

(8)    While Snowy Hydro will be represented by a commercial law firm, there will be undoubted overlap in the arguments that are likely to be advanced by, on the one hand, the first and second respondents and, on the other hand, Snowy Hydro. However, it is difficult at this early stage in the proceeding to determine relative cost allocations between the respective respondents.

(9)    The amount of the cap also recognises the applicant’s outlay of almost $10,000 for filing fees and transcripts.

(10)    On balance, given the evidence of the applicant’s financial position, and taking into account its limitations, I consider that a combined cap of $40,000 strikes a reasonable balance between the need to place the applicant at some financial risk, but not to imperil irremediably his financial security.

Disposition

66    I am satisfied that an order should be made under r 40.51. That order should not be set at the amount of $1 sought by the applicant. Instead, corresponding orders to cap the maximum costs at $20,000 should be made in relation to the first and second respondents (collectively) and, separately, Snowy Hydro. In other words, the maximum costs that may be recovered in this proceeding:

(1)    as between the applicant and the first and second respondents, collectively, is $20,000; and

(2)    as between the applicant and Snowy Hydro, is $20,000.

67    Given that: (i) I have capped the costs under r 40.51; and (ii) the applicant has been successful in obtaining an order under r 40.51, but unsuccessful in the amount of the cap sought; it is appropriate that costs of the interlocutory application be costs in the proceeding.

Associate:

Dated:    10 July 2025