Re Viliamu, Anitelea v Commissioner of Taxation

[2010] AATA 884

---

(Decision by: Ms G Ettinger, Senior Member)

Re Anitelea Viliamu
vCommissioner of Taxation

Tribunal:

Member:
Ms G Ettinger, Senior Member

Subject References:
Freedom of Information
Costs
Whether successful or substantially successful in review application
Applicant substantially successful
Whether discretion to recommend costs be paid should be exercised
Tribunal found no benefit to general public
Tribunal found no commercial benefit to applicant -Tribunal considered no additional matters relevant to exercise of discretion
Discretion should not be exercised
Application to recommend costs declined

Legislative References:
Freedom of Information Act 1982 (Cth) - s 66

Case References:
Re Lianos and Secretary, Department of Social Security (No 2) - [1985] AATA 281; (1985) 9 ALD 43
Re Rae and Department of Arts, Heritage and Environment - [1985] AATA 112; (1985) 7 ALD 449
Collins v Indigenous Business Australia - [2008] AATA 505
Huttner and Department of Immigration and Ethnic Affairs - [1995] AATA 357

Hearing date: 13 October 2010
Decision date: 11 November 2010

Sydney

---

Decision by:
Ms G Ettinger, Senior Member

SUMMARY

1. Mr Anitelea Viliamu appealed against a decision of the Commissioner of Taxation, (the Commissioner), who refused access to various documents that Mr Viliamu sought under the Freedom of Information Act 1982 ("the Act"). The dispute was finally resolved by consent, after the Commissioner, the Respondent in these proceedings, agreed to release more of the documents to which access had initially been denied. The agreement was given effect in a consent decision of the Tribunal dated 27 September 2010.

2. The Applicant has asked the Tribunal to make a recommendation to the Attorney General with respect to costs. The Tribunal does not have a general power to award costs but may under certain circumstances make a recommendation that costs be paid. Section 66 of the Act states that the Tribunal may recommend to the Attorney-General that costs be awarded where the applicant is successful, or substantially successful, in his or her application for review. The power to make a recommendation is discretionary. The discretion can only be exercised after the Tribunal has had regard to the matters referred to in s 66(2) of the Act although other factors may also be relevant.

3. Mr F Varess, a solicitor, appeared for the Applicant, and Ms A Nowland, FOI Adviser, Legal Services Branch of the ATO appeared before me for the Commissioner. Mr Varess prepared an affidavit and attachments which he used as the basis of his submissions, and both parties referred to decided cases as authority for their arguments.

4. I was not satisfied that the power to recommend costs should be exercised, and I decline to do so. My reasons follow.

LEGISLATIVE CONTEXT

5. I move then to consider the application of section 66 of the Act which follows as relevant:

66 Tribunal may make recommendation that costs be available in certain circumstances

(1)

Where :

(a)

a person makes application to the Tribunal under section 55 for review of a decision constituting the action to which the complaint relates ; and

(b)

the person is successful, or substantially successful, in his or her application for review ;

the Tribunal may, in its discretion, recommend to the Attorney-General that the costs of the applicant in relation to the proceedings be paid by the Commonwealth .

(2)

Without limiting the generality of the matters to which the Tribunal may have regard in deciding whether to make a recommendation under subsection (1 ), the Tribunal shall have regard to :

(a)

the question whether payment of the costs or any part of the costs would cause financial hardship to the applicant ;

(b)

the question whether the decision of the Tribunal on review will be of benefit to the general public ;

(c)

the question whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal ; and

(d)

the reasonableness of the decision reviewed by the Tribunal .

(3)

The Attorney-General may, pursuant to a recommendation of the Tribunal under subsection (1 ), authorize the payment of costs to an applicant .

6. Ms Nowland submitted that in order to make a decision, I needed to have regard to the requirements of section 66 of the Act.

WAS THE APPLICANT SUBSTANTIALLY SUCCESSFUL IN HIS CLAIM

7. In summary, section 66(1) of the Act states that if a person makes an application to the Tribunal regarding a matter where documents have been refused under Freedom of Information legislation, and the person is successful or substantially successful, then the Tribunal has a discretion to recommend to the Attorney-General that the costs of the proceedings be paid by the Commonwealth.

8. It follows then, that one of the primary considerations in a matter such as this, is to ascertain whether the Applicant was successful or substantially successful in his claim.

9. Mr Varess filed an Affidavit with attachments which gave a history of the Applicant's requests for information from the Commissioner, and the follow-up carried out by Mr Varess' staff. What follows is a summary of what Mr Varess stated.

•

Mr Varess drew my attention to an application dated 17 March 2010 which he made on behalf of Mr Viliamu to the Commissioner requesting copies of income tax documents for the period 1980 to 1989.

•

The Commissioner's letter of reply dated 14 April 2010 informed Mr Varess that the information had been destroyed because it was older than four years after the issue of the notices of assessment; further that electronic copies were only available for tax returns lodged from 1992.

•

On 14 April 2010 a staff member from Mr Varess' office telephoned an FOI officer of the Commissioner, and recorded that he told her there was nothing on his system regarding an FOI request. Mr Varess' staff member also recorded the FOI officer's information that if only tax return documents were required, there was no need to apply through FOI, there was no charge, and the relevant documents would be mailed to the taxpayer.

•

A file note of a telephone call dated 11 May 2010 from Mr Varess' office to the Commissioner recorded that the request had been received by the Commissioner on 30 April 2010, and that consideration was to be given to waiver of the $40 fee. The Commissioner had informed the staff member that he had 30 days (until 30 May 2010), in which to consider the waiver. Mr Varess stated that he himself telephoned the FOI office of the Commissioner to discuss what he considered the unreasonableness of the 30 days.

10. An FOI advisor for the Commissioner made a decision under the Freedom of Information Act on 15 April 2010, and referred to the request by the Applicant dated 17 March 2010. That decision waived the $30 fee, and provided a one page screen printout in relation to the request for documents relating to registrations for the period 1980 - 1989. The decision maker also stated that there were no further records to be found for the period 1980 - 1989, and accordingly refused access pursuant to section 24A of the Act.

11. On 30 April 2010, Mr Viliamu sought review of the decision of 15 April 2010. On 10 June 2010, a further decision was issued giving him access to 27 documents showing details of his income tax returns and notices of assessment. A further 13 documents relating to system notes for the period 1990 to 12 May 2010 were also released. There was also reference to searches for other records for the period 1990 to 12 May 2010 using both Anitelea and Telea Viliamu, and for which the result was, no documents.

12. Mr Varess wrote at paragraph 12 of his Affidavit that the decision of 10 June 2010 resulted in the release of over 200 folios, including a folio referring to the 1980s. He stated that: This decision suggests that through the processing of the FOI request and the internal review that modifications had been made to the scope of the request. In this regard I say that at no time did I modify the scope of the request. At all times the ATO was aware that all material relating to the applicant was being sought, in particular that relating to the 1980s . In his oral submissions, Mr Varess indicated that Mr Viliamu had at all times requested all material relating to the 1980s, and not just the tax returns. He conceded there may have been a misunderstanding regarding the request.

13. Mr Viliamu sought review at this Tribunal in an application dated 28 June 2010. On 30 July 2010, the Commissioner released to him, 13 additional folios comprising of PAYG summaries. The matter was settled by consent at this Tribunal on 27 September 2010.

14. Mr Varess submits that Mr Viliamu's application was substantially successful, and that the Tribunal should therefore exercise its discretion to recommend to the Attorney General that the Commonwealth pay Mr Viliamu's costs associated with his application, particularly as he is unemployed, and suffers hardship.

15. Ms Nowland submitted that it was not unreasonable for further documents to be released after the initial decision had been made, as had ostensibly occurred in this case. She submitted however, that, in this case, the further 13 folios were payment summaries which formed part of Mr Viliamu's tax returns. They were not, therefore, she submitted, additional documents, released to him. They did not provide any real information to him after the initial decision, she submitted, and the internal review could therefore not be held to have discovered any new material. Ms Nowland argued that Mr Viliamu had therefore not been successful, or substantially successful, in his application for review.

16. Mr Varess disagreed with Ms Nowland that the payment summaries simply formed part of the tax returns, and submitted that they were entirely different documents containing additional information.

17. In coming to the threshold decision, being whether the Applicant has enjoyed substantial success, I can consider the quantity of documents that became available. However the real test is whether disclosure of the documents has led to increased disclosure of information that was not previously available ( Re Lianos and Secretary, Department of Social Security (No 2 ) (1985) 9 ALD 43).

18. I have considered the documents released, and there is no doubt further documents were released after the request for review was made. What appears to be in contention was whether the 13 folios of PAYG summaries formed part of Mr Viliamu's tax returns. On inspection they appear to be usual PAYG summaries, giving gross income and tax withheld, which were lodged for Mr Viliamu for 2001, and from 2002. They came under cover of a letter of the Commissioner dated 30 July 2010 which informed the Applicant that the system does not contain information relating to years prior to 2001.

19. It is my understanding that PAYG summaries form the basis of a taxpayer's tax return, and that the figures would appear on the tax return if it had been completed correctly.

20. However, Mr Viliamu has received certain information from the Commissioner which he apparently did not have, and sought, and on that basis he may have been substantially successful in his claim. Accordingly I will consider the tests in section 66(2) of the Act.

THE ISSUES TO BE CONSIDERED PURSUANT TO SECTION 66(2) OF THE ACT

(a) Whether payment of the costs or any part of the costs would cause financial hardship to the applicant

21. Mr Varess provided documents lodged by the Applicant at the Tribunal in support of his application to have his fee waived. The document dated 29 June 2010 indicated that Mr Viliamu was unemployed, and that he is impecunious.

22. Mr Varess told me that Mr Viliamu's costs relating to the proceeding and up to the time of Mr Varess' Affidavit, were $3,228.23, including GST. In consideration of that, I have noted the amount incurred, and am mindful that the Tribunal does not play a role in determining the quantum of any amount that may be awarded, ( Re Rae and Department of Arts, Heritage and Environment (1985) 7 ALD 449).

23. I am satisfied from the evidence before me that payment of any part of the costs incurred in his FOI application would cause financial hardship to Mr Viliamu.

(b) Whether the decision of the Tribunal on review will be of benefit to the general public

24. Both representatives agreed that the consent decision of the Tribunal would not be of benefit to the general public, although Mr Varess submitted that such applications may encourage the Commissioner to process FOI decisions in a more appropriate and reasonable manner.

25. I accept that Mr Viliamu may have benefited from the disclosure of information, but that the concept of public benefit is wider than that. I am not satisfied the applicant has demonstrated a public benefit flowing from the release of the information.

(c) Whether the decision of the Tribunal on review will be of commercial benefit to the person making application to the Tribunal

26. I am mindful of Senior Member McCabe's comments in Collins v Indigenous Business Australia [2008] AATA 505, that the cases suggest the Tribunal may be less inclined to exercise the discretion to make a recommendation that costs be paid where the release of the information in question results in a commercial benefit to the applicant, as, for example, in Huttner and Department of Immigration and Ethnic Affairs [1995] AATA 357 at [17] per DP Blow.

27. I am not aware in this case of any commercial benefit accruing to the Applicant as a result of the release of the documents, and I decide that there is no commercial benefit accruing to the Applicant relating to the release of the documents in this matter.

(d) The reasonableness of the decision reviewed by the Tribunal

28. Mr Varess was very emphatic in his description of the conduct of the Commissioner as unreasonable. He recited the history of the application for documents made on behalf of Mr Viliamu, as indicated in my paragraphs summarised above. Mr Varess documented details in reply to his correspondence, and provided file notes of his staff's telephone calls to the Commissioner's FOI officers as attachments to his Affidavit. He pointed out that initially the application dated 17 March 2010 had not been logged as received, and no decision was made until 15 April 2010. That decision, he submitted, only dealt with material from the 1980s and released only one folio, which was only part of what the Applicant had requested. He complained that initially the request had only been treated as one for tax returns.

29. Mr Varess also emphasised the unreasonableness of the Commissioner's staff, who at first indicated the waiver of fees for the reconsideration would be considered over a period of 30 days in circumstances where waiver had already been granted for the initial application. Mr Varess submitted that when he himself telephoned, the Commissioner's FOI officer agreed that 30 days was unreasonable, and a decision waiving the fee was made soon afterwards.

30. Ms Nowland submitted that for further documents to be released on review did not render a decision unreasonable. As noted above, she also submitted on behalf of the Commissioner that the release of the 13 folios of payment summaries were not additional documents in the sense that the information from those was contained in Mr Viliamu's tax returns.

31. I have noted the submissions of both parties. I am mindful that Mr Varess acted quickly and responsibly in following up the application for Mr Viliamu when he had not heard from the Commissioner. However, I am not satisfied that any delays in processing the application were noteworthy, or deserving of great criticism. I accept Ms Nowland's submission that the 13 PAYG summaries contained information which would, or should have been, in Mr Viliamu's tax returns. I have considered the reasonableness of the decision appealed to the Tribunal, and am not satisfied that the decision which was appealed to the Tribunal was entirely unreasonable in spite of the fact the information in the PAYG summaries could be expected to be in Mr Viliamu's tax returns.

Exercising the discretion

32. Section 66(2) of the Act does not contain an exhaustive statement of matters that may be taken into consideration when deciding whether to exercise the discretion. However, I am not aware of any other matters that are relevant to the exercise of my discretion in this case.

33. My findings above include:

•

that Mr Viliamu has received certain information from the Commissioner which he apparently did not have, and sought, and on that basis he may have been substantially successful in his claim.

•

On that basis, I also considered the indicia in section 66(2)(a), finding that payment of the costs of the application would cause Mr Viliamu hardship;

•

That pursuant to section 66(2)(b), the decision of the Tribunal on review would unquestionably be of no benefit to the general public;

•

That pursuant to section 66(2)(c), the decision of the Tribunal on review would not be of commercial benefit to Mr Viliamu; and

•

That pursuant to section 66(2)(d), I have considered the reasonableness of the decision appealed to the Tribunal and am not satisfied that the decision which was appealed to the Tribunal was entirely unreasonable, in spite of the fact the information in the PAYG summaries could be expected to be in Mr Viliamu's tax returns .

34. On the basis of the above, I am not persuaded that I should recommend that costs should be paid to the applicant.