Federal Court of Australia

Patrick v Director-General of the Australian Submarine Agency [2026] FCA 914

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 as between the applicant and the respondent is TWENTY THOUSAND DOLLARS ($20,000).

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    The applicant appeals from a decision of the Administrative Review Tribunal made 28 March 2025 pursuant to s 172 of the Administrative Review Tribunal Act 2024 (Cth).

2    By an interlocutory application forming part of the applicant’s amended notice of appeal, the applicant seeks an order pursuant to r 40.51 of the Federal Court Rules 2011 (Cth) that the maximum costs as between party and party that may be recovered in the proceedings is $5,000.

3    The applicant has made a previous application in which the Court limited the maximum costs that may be recovered: Patrick v Secretary, Department of Climate Change, Energy, the Environment and Water [2025] FCA 754.

4    On the application of the parties, the application was considered on the papers.

5    It is for the reasons which follow that there will be an order limiting the maximum costs that may be recovered to $20,000 (exclusive of GST).

Documents read

6    On the application, the applicant read the following documents:

(a)    Affidavit of Rex Lyall Patrick sworn 4 December 2025; and

(b)    Affidavit of Rex Lyall Patrick sworn 28 January 2026.

7    The respondent reads the affidavit of Melissa Jayne Murphy sworn 23 January 2026.

Principles

8    FCR 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.

Note:     Costs as between party and party is defined in the Dictionary.

(2)    An order made under subrule (1) will not include an amount that a party is ordered to pay because the party:

(a)    has failed to comply with an order or with these Rules; or

(b)    has sought leave to amend pleadings or particulars; or

(c)    has sought an extension of time for complying with an order or with any of these Rules; or

(d)    has not conducted the proceeding in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible, and another party has been caused to incur costs as a result.

9    In Houston v State of New South Wales [2020] FCA 502 at [17], Griffiths J set out the relevant principles, noting that the discretion under FCR 40.51 must be exercised judicially by reference to all of the relevant circumstances and that there was no fixed criteria governing its exercise.

10    His Honour identified a number of factors that were relevant to the exercise of the discretion in that matter including:

(a)    the nature of the relief sought;

(b)    the complexity of the litigation;

(c)    the interests of the parties in both prosecuting and defending the litigation;

(d)    whether the applicant’s claims are reasonably arguable;

(e)    whether a party would otherwise be forced to abandon a proceeding if such an order was not made;

(f)    whether there is a public interest element to the proceeding;

(g)    the costs which are likely to be incurred in the proceeding, the timing of the maximum costs application; and

(h)    whether the party opposing the making of the orders has been uncooperative and/or delayed the proceedings.

11    So too, in Australians for Indigenous Constitutional Recognition Ltd v Commissioner of the Australian Charities and Not for Profits Commission [2021] FCA 435 at [8]-[11], Thawley J identified a number of factors observing that the weight each factor carries, if relevant to a particular case at all, varies according to the particular circumstances. It also includes the basis upon which any legal representatives are acting, for example:

(a)    if the legal representatives for the applicant are acting on a pro bono basis;

(b)    whether the applicant has a pecuniary interest in the outcome of the proceeding; and

(c)    the apparent merit of the proceeding.

The ART decision

12    The ART decision from which the applicant appeals concerns an application for review of a decision made on 6 March 2024 by the Australian Submarine Agency to refuse the applicant access to documents under the Freedom of Information Act 1982 (Cth).

13    Before the ART, the issue concerned a single document which was a Report dated November 2023 dealing with the process by which the Commonwealth Government will identify locations suitable to store and dispose of spent nuclear fuel and nuclear waste.

14    The respondent to the proceedings before the ART, the Director-General of the Australian Submarine Agency, contended that the Report was wholly exempt from disclosure under the Cabinet exemption in s 34(1)(a) of the FOI Act. Before the ART, the contested issue was whether the Report was brought into existence for the dominant purpose of submissions for consideration by Cabinet under s 34(1)(a)(ii).

15    The ART member found that the Report was an exempt document under s 34(1)(a) of the FOI Act such that the applicant was not entitled to access the Report. Accordingly, the ART affirmed the decision under review.

The nature of the appeal

16    Before this Court, the applicant raises three questions of law:

(1)    For the purposes of s 34(1)(a) of the FOI Act, can a person other than a Minister (or the Cabinet itself) commission a document for the dominant purpose of submissions for consideration by Cabinet?

(2)    Does a breach of convention conditions specifically mandated for Cabinet information constitute a waiver of Cabinet confidentiality such that a s 34(1)(a) exemption no longer applies to Cabinet information?

(3)    Does factual material that would reveal the nature of some of the advice given meet the s 34(6) test of revealing a Cabinet deliberation?

Submissions and consideration

17    The applicant submits that the appeal involves aspects of public interest which is a factor of some significance in awarding costs: Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864, [45]. However, the reference to Corcoran by the applicant relies on only part of the passage referred to. Bennett J continued that public interest and an arguable case are not necessarily decisive, and not, of themselves, sufficient to prevent the usual costs order being made. The usual costs order applies notwithstanding that the Act is beneficial legislation, although discretionary considerations may lead to a different result: see [45] and [46] and the cases cited therein.

18    In support of that submission, the applicant contends that the outcome of these proceedings will contribute to the proper understanding of the FOI Act, that the s 34(1)(a) exemption was claimed in response to 245 requests in the years 2024/25; 179 requests in 2023/2024; 128 requests in 2022/2023; 173 requests in 2021/2022 and 139 requests in 2020/2021. Those figures are footnoted in the applicant’s written submissions as a proposed agreed fact. Those figures may or may not be correct, but alone, they are of little consequence because the nature of the requests are not identified.

19    Further, the mere fact that the exemption was invoked does not mean that it has been invoked improperly.

20    Next, the applicant submits that the proceedings relate to a matter of significant public interest which is the process by which the Federal Government will identify locations suitable to store and dispose of spent nuclear fuel.

21    I accept that the topic is a matter which may fairly be described as involving a matter of significant public interest.

22    The respondent acknowledges a different public interest which concerns the construction and operation of the FOI Act in light of the importance of the legislation to the system of responsible government: Patrick at [32] referring to Egan v Willis (1998) 195 CLR 424; [1998] HCA 71 at [42] (Gaudron, Gummow and Hayne JJ) where the High Court observed that number of features, including the FOI legislation, supplement the operation of responsible government.

23    I accept there is also public interest in the construction and evaluation of the FOI Act for the reasons submitted by the respondent.

24    The respondent submits that the specific questions raised by the applicant are confined in that they involve one aspect of exemption in the FOI Act.

25    Whilst accepting for the purposes of the application the figures cited by the applicant in relation to a number of FOI decisions, the respondent observes that s 34 of the FOI Act includes a number of exemption grounds, whereas this application relates to s 34(1)(a) and part of an exemption in s 34(6).

26    The respondent also observes that the FOI decisions involving a s 34 claim comprise a very small fraction of FOI decisions made in that particular year. In the case of years 2020/2021, 2021/2022, 2022/2023, 2023/2024 and 2024/2025, that figures is less than 1%.

27    Again, whether or not that is correct, the figures are of limited utility in the overall consideration of whether the discretion should be exercised. The fact that there may be a small fraction of FOI decisions involving the section in question (here, s 34(1)(a)) does not mean that there is not a public interest in the proceeding.

28    I am satisfied that there is a public interest in the subject matter set out above and that the matters raised by the respondent are also of some weight. Public interest is but one of the factors which inform the exercise of the discretion under FCR 40.51.

The three questions

29    Next, the applicant submits that the questions on appeal raise three matters that have not been judicially considered.

30    The fact that the questions have not been judicially considered, were that in fact the case, is of limited weight in the particular circumstances of this matter for the reasons I explain below. Further, the fact that a question raised on appeal from the ART has not been judicially considered, and the weight to be afforded to that fact, will vary with the particular circumstances.

31    The question of whether there had been any judicial consideration of the questions posed on appeal necessarily invokes a consideration of the merits of these proceedings, albeit at a high level.

32    Central to this issue is s 34 of the FOI Act which provides relevantly:

34 Cabinet documents

General rules

(1)    A document is an exempt document if:

(a)    both of the following are satisfied:

(i)    it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;

(ii)    it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or

(b)    it is an official record of the Cabinet; or

(c)    it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or

(d)    it is a draft of a document to which paragraph (a), (b) or (c) applies.

(2)    A document is an exempt document to the extent that it is a copy or part of, or contains an extract from, a document to which subsection (1) applies.

(3)    A document is an exempt document to the extent that it contains information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of the deliberation or decision has been officially disclosed.

Exceptions

(4)    A document is not an exempt document only because it is attached to a document to which subsection (1), (2) or (3) applies.

Note:    However, the attachment itself may be an exempt document.

(5)    A document by which a decision of the Cabinet is officially published is not an exempt document.

(6)    Information in a document to which subsection (1), (2) or (3) applies is not exempt matter because of this section if the information consists of purely factual material, unless:

(a)    the disclosure of the information would reveal a Cabinet deliberation or decision; and

(b)    the existence of the deliberation or decision has not been officially disclosed

First question

33    The applicant frames the first question as: For the purpose of s 34(1)(a) of the FOI Act, can a person other than a Minister (or the Cabinet itself) commission a document for the dominant purpose of submission for consideration by Cabinet?

34    The respondent submits that the question puts a gloss on the statutory language by using the word “commissioned” and that the test is whether there is a document which has been submitted to Cabinet, or was proposed by a Minister to be submitted to Cabinet, or the document was brought into existence for the dominant purpose of a submission for consideration by Cabinet.

35    Whereas I do not reach a final conclusion on that question, nonetheless, the consequence of a restatement of the nature of the exemption in s 34(1)(a) in a form which is not in accordance with the terms of the section impacts on the issue to be determined. To that extent, I accept the respondent’s submission in relation to question one.

36    In the circumstances, albeit considered at an impressionistic level, the merits of the first question are not strong.

Second question

37    The applicant frames the second question as: Does a breach of convention conditions specifically mandated for Cabinet information constitute a waiver of Cabinet confidentiality such that the s 34(1)(a) exemption no longer applies to Cabinet information?

38    The respondent submits that that question introduces a concept of waiver which is specifically dealt with in s 34(3). The respondent submits further that there is no legal concept of waiver which removes a person’s privilege by the actions of another party acting independently of that person. I accept those submissions. In particular, the s 34(3) point is clear on the face of the subsection.

39    Next, the respondent identifies a difficulty with the second question in that it introduces a breach of convention. The respondent notes that the ART identified a procedural irregularity in the dealings with the documents: at [36] of the ART’s reasons. The ART considered that the procedural irregularities did not carry significant weight in that whether the Report was properly classified or marked was not determinative of its exemption status.

40    A further difficulty may be noted with the second question which is that it invites a merits review, a matter which this Court does not have the power to do.

41    In the circumstances, albeit considered at an impressionistic level, the merits of the second question are not strong.

Question three

42    The applicant frames the third question as: Does factual material that would reveal the nature of some of the advice given meet the s 34(6) test of revealing a Cabinet deliberation?

43    The respondent submits that the exception in s 34(6) concerns a purely factual matter. The respondent refers to the ART’s reasons at [42]-[43] which states:

42.    I have been provided with a copy of the Review Report in order to consider if any part of it can be released as ‘purely factual material’ under s 34(6).

43.    The nature of the Review Report is that it is a significant piece of policy advice to the government to inform the decision-making process by which the government will identify locations in the current or future Defence estate that could be suitable to store or dispose of nuclear waste including spent fuel. It presents a series of recommendations for consideration and contains very limited factual material. The document is advisory in nature and includes opinions and options about what ‘could’ or ‘should’ be done in the future. There is factual material provided as background, but it is intertwined with the recommendations and advice such that it cannot be meaningfully viewed in isolation. Some of the factual material relating to the experience of others would reveal the nature of some of the advice being given.

44    The respondent submits that reading those paragraphs of the ART’s reasons, it is clear that the s 34(6) exception does not operate.

45    I accept that submission.

46    As with the first two questions, when considered at an impressionistic level, the merits of question three are not strong.

Conclusion on the merits of the questions posed

47    It is for these reasons that the merits of the questions raised in the proceedings are not particularly strong.

The confined nature of the proceeding

48    Next, the applicant refers to the confined nature of the proceeding. The applicant contends that the factual matters will be largely, if not wholly uncontested, with no discovery and no further interlocutory steps required, with a realistic estimate of one day being required for a hearing. Given the matter concerns three legal questions and there will be no merits review, I accept that the proceedings are necessarily confined. The confined nature of the proceedings also bears upon the question of quantum.

49    As to the time required for the hearing the applicant has been a party in two recent Federal Court and Full Court FOI related proceedings, as well as a recent South Australian Court of Appeal FOI related proceeding. He also has other Full Court and Court of Appeal of the South Australian Supreme Court on foot. Those proceedings variously involved Senior Counsel and Junior Counsel.

50    The applicant has appeared self-represented in more than 30 ART, South Australian Civil and Administrative Tribunal and New South Wales Civil and Administrative Tribunal matters so that he has some experience in representing himself.

51    I accept that an estimate of one day is a realistic estimate.

The purpose of the proceeding

52    Next, the applicant refers to the purpose of the proceeding and the timing of the costs order application. The applicant submits that he does not act for private gain nor does he seek monetary relief, but to clarify the operation of the FOI Act in respect of this particular access request and others that will follow. The applicant notes that this application was made in the originating application and has been raised early.

53    I accept that the application was raised early. I also accept that the applicant does not act for private gain or seek monetary relief.

The effect of an adverse costs order

54    Next, the applicant submits that an adverse costs order is likely to have a significantly greater effect on the applicant than the respondent.

55    I accept that submission, noting that the applicant intends to conduct the proceeding as a self-represented litigant.

The purpose of the legislation

56    The applicant draws the Court’s attention to s 3(4) of the FOI Act which identifies that the functions and powers conferred by the FOI Act were intended by Parliament to be performed and exercised as far as possible to facilitate and promote public access to information promptly and at the lowest reasonable cost. So much so may be accepted, but that does not mean that appeals from a Tribunal which has upheld a claim by the Agency in question necessarily means that a costs protection order should be made.

The applicant’s financial position

57    The applicant submits that the application is brought in the public interest. I have dealt with the question of public interest above but as part of that submission he refers to his financial position.

58    The applicant sets out his financial position in his affidavit sworn 4 December 2025. He deposes that:

(a)    he is living in a caravan;

(b)    he is a Director of three companies, being;

(i)    Acoustic Force Pty Ltd, which is a company set up to conduct acoustic warfare training for defence and the defence industry. Acoustic Force is now the sole shareholder of Transparency Warrior Pty Ltd. The applicant deposes to having full control over both Acoustic Force and Transparency Warrior;

(ii)    Transparency Warrior provides training for journalism and FOI related work; and

(iii)    Whistleblower Justice Fund Pty Ltd, which the applicant describes as a not-for-profit company, focused on advocacy in respect of whistleblower reforms.

59    The applicant identifies regular revenue from Michael West Media and deposes that his past monthly revenue is in the order of the sum of $12,578, with current monthly revenue of $2,578. Within that $12,578, is a monthly stipend of $10,000 from Acoustic Force/Transparency Warrior. That stipend concluded in May 2025.

60    In summary, after identifying other sources of income, the applicant estimates that the revenue of the three companies is in the order of $6,230 per month, with income due to him from those companies at $2,500 per month.

61    The applicant also deposes that his taxable income for 2022/2023 was $113,916 before dropping in 2023/2024 to $37,675, and estimates his taxable income for the 2024/2025 year as being between $37,000 and $114,000.

62    The applicant estimates that he has monthly costs of $9,186.

63    The applicant’s current assets at the time of his December 2025 affidavit, were in the order of $1.96 million. He has liabilities of approximately $800,000.

64    Against that background, the applicant contends that his tipping point of $5,000 is an appropriate figure. The tipping point being that point beyond which the applicant will not be able to pursue the proceeding.

65    There was no suggestion that the applicant will be forced to not proceed with the proceeding should a figure in excess of $5,000 be ordered. Rather, it is a point at which the applicant may choose not to pursue the proceeding. As the applicant contends, he has no financial interest in the proceeding.

Conclusion

66    In all the circumstances and in the exercise of the Court’s discretion, taking into account the above factors, including but not limited to the likelihood that the application will take one day; the apparent merits of the claim; that the applicant will not be forced to abandon a proceeding if a limitation order of $5,000 is not made, but may choose to do so; and that there is a public interest element to the proceeding (albeit limited), a maximum costs order in the sum of $20,000 is appropriate.

67    The $5,000 proposed by the applicant is inadequate.

68    The respondent seeks that that figure should be no less than $30,000, however such an amount is excessive in all the circumstances.

69    Accordingly, there will be an order pursuant to FCR 40.51 that the maximum costs that may be recovered in this proceeding as between the applicant and the respondent is $20,000.

Associate:

Dated:    13 July 2026