Wednesday, 1 May 2013


 Vaucluse Hospital  v Phillips/ Paul Pattison/ (No.2) [2006] FMCA 664 (10 May 2006)

This trustee is the corrupt Paul Pattison  who was  protected by Veronique Ingram  Inspector General in Bankruptcy and Bankruptcy Regulations at ITSA. Pattison was eventually de-registered as a trustee  and was made a bankrupt himself
Last Updated: 24 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
 VAUCLUSE HOSPITAL  v PHILLIPS & ANOR (No.2)[2006] FMCA 664

COSTS – BANKRUPTCY – Trustee joined as party to proceedings – application brought by each party for costs – agreement by respondent to pay applicant’s costs – each party’s application for costs refused.

Applicant: VAUCLUSE HOSPITAL  PTY LTD

First Respondent:LUKE PHILLIPS

Official Trustee in Bankruptcy:PAUL ANTHONY PATTISON

File number:MLG 1148 of 2005

Judgment of:Riethmuller FM

Hearing date:Submissions made in chambers

Date of last submission:28 February 2006

Delivered at:Melbourne

Delivered on:10 May 2006

REPRESENTATION
Counsel for the Applicant:Mr G. Bigmore QC

Solicitors for the Applicant:Mendelsons

Solicitors for the First Respondent:KCI Lawyers

Counsel for the Official Trustee in Bankruptcy:Mr R. Randall

Solicitors for the Official Trustee in Bankruptcy:Leonard Legal
ORDERS
(1)That each party’s costs application be refused.
(2)That the executor of the respondent’s estate have leave to apply to set aside Order 1 within 21 days.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE
MLG 1148 of 2005
 VAUCLUSE HOSPITAL 
Applicant
And
LUKE PHILLIPS
Respondent
And
PAUL ANTHONY PATTISON
Official Trustee in Bankruptcy


REASONS FOR JUDGMENT
1.The respondent in this matter was successful in his application to review the decision of a Registrar making a sequestration order. The reasons for judgment on the substantive issues are set out in  Vaucluse Hospital  v Phillips & Anor [2006] FMCA 44. Since the judgment was handed down in the matter, the respondent has agreed to pay the applicants costs (excluding the additional costs incurred as a result of the trustee’s participation in the proceeding) of the application for review.
2.The terms of the applicants submissions with respect to costs are as follows:
APPLICANT’S ( VAUCLUSE HOSPITAL  P/L) SUBMISSIONS WITH RESPECT TO COSTS
Applicant’s claim for Costs against the Trustee
1.  Vaucluse Hospital  Pty Ltd (‘the Applicant") seeks an order pursuant to Rule 29.5(3)(a) that Paul Anthony Pattison (‘the Trustee") pay to the Applicant the additional costs caused to it by the granting of leave to the Trustee to be heard in this proceeding.
...
3. The order sought by the Applicant ‘follows the event’. The Trustee applied for an order annulling the bankruptcy of the Respondent which resulted from a Registrar’s sequestration order. The Trustee was wholly unsuccessful.
4. If, contrary to the Applicants submission in paragraph 12 below, the Court is of opinion that the Trustee took the role of assisting the Court (or partly took on that role), as distinct from advancing his own pecuniary interests, then there should, still be no order for the Trustees costs (for the reasons put forward below), but the Applicant should not have its additional ‘costs (or should have only a percentage of them).
Response to Trustee’s claim for Costs against Applicant
5. Although wholly unsuccessful in his request for annulment, the Trustee makes an extraordinary application for an order that the Applicant pay the Trustee’s costs.
6. The Trustee was not a party. Although he was (and remains) at risk of having to pay costs ordered in favour of the other parties or any of them, his application always involved the seeking of an indulgence, that is to say the making of an annulment order which would have had the effect (one assumes) of facilitating his recovery of remuneration and expenses out of the proceeds of realisation of some or all of the Respondent’s property.
7. True it is that s.79 confers a very wide discretion, upon the Court in respect of costs, so wide that modern authority clearly supports the making of costs orders against non-parties standing behind impecunious unsuccessful applicants; cf. Bent v Gough [1992] FCA 267; (1992) 36 FCR 204.
8. However, the Trustee cites no authority that supports the making of a costs order against a party in favour of a non-party. In paragraph 15 of his written submissions on costs, counsel for the Trustee refers to Kallis v Supreme Concrete Pumping and Machinery Pty Ltd [FMCA 1745 as if it bore some resemblance to the present matter. The reference to that decision is misconceived. Kallis is readily distinguishable because, there, an annulment was ordered on the application of the bankrupt – the trustee in bankruptcy was properly a respondent and the petitioning creditor was’ properly notified and (at least) entitled to seek to be heard; see Rules 35.2(2), 35.3(3) and 29.5. The costs order against the creditor was an order made against a non-party (or another party, if the creditor had been added as a party) in favour of a party.
9. In any event, here, the Applicant was not unsuccessful. Although the principal application stands to be dismissed (upon the setting aside. of the Registrars sequestration order pursuant to constitutionally mandated review), that result follows from the fact that the Applicant was paid the whole of the debt owed to it by the Respondent after the sequestration order was pronounced. Where otherwise valid petitions are dismissed because the debtor pays the petitioning creditor’s debt, costs are usually awarded in favour of the petitioner; see for example Re Noye (1956) 18 ABC 77.
10. Here, passing reference has been made to Sarina ( [2006] FMCA 44 @ [80] and see also [82]), but no conclusion has been drawn that the creditors application would have failed on the ground that the Respondent was ready and able, but simply unwilling, to pay his debts as and when they fell due. Indeed, such a conclusion would be contrary to the evidence and contrary to the finding that the Respondent was unable to manage his affairs.
11. Even if the Applicant would, on a hypothetical fully contested hearing, have failed (as the Trustee contends) on Sarina grounds (a rare outcome in bankruptcy cases), the Trustee’s submission that he should be awarded costs (paragraphs 10-12 of his counsel’s written submissions on costs) is reduced to absurdity: In such circumstances, a Trustee firmly believing in the merits of the bankrupt’s application for review would have no prospect of obtaining an order for annulment and should not even contemplate taking up the Court’s time with an application for leave to be heard and thus cause other parties to incur additional costs.
12. In paragraph 13 of his written submissions on costs, Counsel for the Trustee overstates his clients position by imputing to him a role of having assisted the Court. It is clear from [2006] FMCA 44 @ [17] that it was concluded that the Trustee made only an oral application for annulment. Given that no written application was made as required by the Rules (see @ [16]-[17]), that conclusion is unsurprising.
13. The Trustee’s claim for costs against the Applicant should be refused.
3.The substantive arguments relied upon by the trustee, in seeking costs from the applicant or respondent are, as set out in the trustee’s outline:
8. The trustee properly did not participate in the substantive application but, as it was appropriate, made submissions in relation to the form of order which the Federal Magistrate might make. After all, the trustee is not an ordinary litigant. 
His interest arises as he is appointed and charged with duties under the Bankruptcy Act by reason of the order of this Court made by the Registrar. The substance of the submission on behalf of the trustee was that the bankruptcy ought to have been annulled rather than setting aside the sequestration order as this would enable the Court to secure for its officer or pseudo officer, the remuneration and expenses of attending to the administration of the bankrupt’s estate.
...
12. Given the factors referred to in the "Conclusions" of the Federal Magistrate’s judgment, it is axiomatic that Vaucluse has utilised the procedure as a debt collection. Such a contention is reinforced by its willingness to negotiate and accept payment of its debt and costs after the making of the sequestration order in the first instance.
13. As recognised by the Federal Magistrate, it was quite proper for the trustee to be heard in relation to the form of order which would be appropriate. Submissions by the trustee not only propound the trustee’s interest but, more importantly, assist the Court.
14. Vaucluse, upon making the application for the sequestration order, must have reasonably understood that a consequence of the order was that the trustee be appointed and that he be obligated to conduct the administration of the bankrupt estate. In circumstances where Vaucluse continued to resist the application for the review of the sequestration order, it cannot be heard to say it was not proper for the trustee to attend to the appropriate tasks, as is required by the performance standards set out in Schedule 4A to the Bankruptcy Regulations, or to seek to be heard on the application. Vaucluse should bear the risk of costs if it uses the bankruptcy provisions as a debt collection procedure.
15. An order was made requiring the creditor to pay the trustee’s costs in Kallis v Supreme Concrete Pumping and Machinery Pty Ltd [2005] FMCA 1745 per McInnis FM in circumstances where Federal Magistrate McInnis concluded that the difficulties which arose were occasioned by the mistake of the petitioning creditor [25]. Such an approach is consistent with the Federal Magistrate’s reasoning that Vaucluse could have and should have investigated and used other recovery procedures rather than the Bankruptcy Act as a debt recovery vehicle.
16. Alternatively, it is also open to the Federal Magistrate to order that Mr. Phillips pay the trustee’s costs, albeit that he successfully obtained an order setting aside the sequestration order. The Court retains a general discretion with respect to costs. For instance, in Re Horesh; ex parte Edgewater Service Ltd [No. V P808 of 1991 FED No. 466 (Unreported 1 July 1992 per Olney J.)]. Olney J. ordered that the debtor pay 80% of the petitioning creditor’s costs with respect to objections to the petition which were unsuccessful and made no order as to costs in relation to the question of the debtor’s solvency. In this instance the question of whether or not Vaucluse was still the creditor and whether or not Mr. Phillips was solvent did not arise until after 3 November 2005.
17. In support of that application the trustee submits that Mr Phillips:
(a) did not offer any satisfactory explanation as to why the petitioning creditor’s debt remained outstanding for over one year;
(b) did not offer any explanation as to why the judgment debt was not paid prior to the hearing of the application for the sequestration order;
(c) did not offer any explanation as to why he did not seek to set aside the bankruptcy notice;
(d) did not offer any explanation as to why he did not pay the judgment debt before the explanation of the bankruptcy notice;
(e) did not complete a statement of affairs;
(f) did not complete a personal questionnaire;
(g) did not complete a business questionnaire;
(h) failed to provide any books and records to the trustee.
19. Notwithstanding that the Federal Magistrate found that it was difficult to conclude that it was a case of a flagrant, reckless or even negligent disregard for the Court process, if Mr. Phillips had attended to fulfilling the creditor’s requirements prior to the expiration of the bankruptcy notice or prior to the hearing before the Registrar of the Federal Magistrates’ Court, the trustee would not have been placed in the position which ensued.
4.The respondent seeks orders that the trustee pay the respondent’s costs related to the trustee’s application for an amendment order. The respondents outline sets out his submissions as follows:
3. On the other hand, the trustee appeared at the hearing of the application for review to resist the relief sought by the respondent and to contend that an order ought to be made annulling the bankruptcy. The trustee’s appearance was by no means as amicus curiae, or even as a respondent to the application. Rather, his purpose in appearing was to prosecute his own application for relief, being the relief which would have been afforded to him by s 154 had an order been made annulling the bankruptcy.
4. It is appropriate to review the trustee’s role in the proceedings as, in substance, one of a "cross-applicant".
It is artificial to dismiss the respondent’s claim for costs against the trustee with a trivial observation that he had to appear to prosecute the application for review in any event. Whilst the respondent was required to attend to make his application, in reality the hearing (and ultimately the Court’s reasons for judgment) was almost entirely concerned with the trustee’s application for an annulment order. The respondent was obliged to oppose that application vigorously and with lengthy argument. Ultimately, for the reasons set out in the Court’s judgment, the trustee’ s application failed.
5.The trustee, on making an application in the proceedings became a party. Therefore any orders would not be in favour of a now-party.
6.The substantive purpose of the trustee’s appearance in the matter was to propound its submissions that an annulment order should be made rather than an order setting aside the sequestration order. In this respect the trustee was unsuccessful in its application before the court. The respondent was successful in this regard. The applicant remained largely unaffected by the question of whether or not orders annulling or setting aside the sequestration order were made.
7.The purpose of the trustee’s application, in this case, was not to protect the trustee from claims by third parties, but wholly related to the trustee’s pecuniary interests. I see no basis for the applicant or the respondent to be ordered to pay the trustee’s costs and expenses of the hearing given that the trustee attended to seek orders solely for the trustee’s benefit, and the trustee was unsuccessful.
8.The respondent did incur costs in answering the claims of the trustee. The respondent has been successful in this regard. However the trustee was not the cause of the litigation and had incurred expenses because of the litigation. The respondent remained in the position of a litigant seeking an indulgence of the court. I am not satisfied that the trustee should be ordered to pay the respondents costs in this case.
9.The applicant and trustee both opposed the respondent’s application, ultimately unsuccessfully. I do not accept that an order for the trustee to pay part of the applicant’s costs ‘follows the event’. The ‘outcome’ was in favour of the respondent: both the applicant and the trustee were unsuccessful in opposing the order sought by the respondent. Neither the applicant, nor the trustee, obtained any orders in their favour, or relief against the other, nor defeated a claim of the other. In this case I am not satisfied that a costs order in favour of the applicant against the trustee is appropriate.
10.I therefore make no orders for costs beyond the consent orders made on 28 February 2006.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

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Date:

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    URL: http://www.austlii.edu.au/au/cases/cth/FMCA/2006/664
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    Monday, 29 April 2013

    Home > Freedom of Information >Public interest test in exemptions

    FOI - Public interest test in exemptions

    This page talks about the public interest test under these headings:

    What is the public interest test?

    Under the following exemptions, information is only exempt if, in the particular case, it is not in the public interest to disclose the information (sections 50-58)
    Inter-governmental relations
    Deliberative processes
    Effective operations of public sector organisations
    Health, safety, environment
    Confidentiality obligations, confidential sources
    Privacy and cultural information
    Commercial and business information, research, examination papers
    Financial and property interests of Territory or public sector organisation.
    For information to be exempt under those sections-
    1. the information must satisfy each requirement of the exemption; and


    2. the public interest factors against disclosure must outweigh the public interest factors for disclosure.
    For most exemptions, satisfying the requirements of the exemption raises a public interest factor against disclosure, because the exemption is based on an underlying harm to the public interest. In those cases, the public interest test involves:
    Stage 1 - Identifying all the public interest factors for and against disclosure that apply in the particular case; and
    Stage 2 - Assessing the weight of each factor and deciding whether the factors against disclosure outweigh the factors for disclosure.
    NB: In some cases, like the deliberative process exemption, meeting the requirements of the exemption does not give rise to a public interest factor against disclosure (see the Deliberative processes exemption page).

    Applying the public interest test

      If all requirements of the exemption are satisfied  
                   
      Identify all public interest factors for and against disclosure  
                   
     

    For Disclosure

    For example
    • Government accountability
    • Public participation
    • Public awareness
    		   

    Against Disclosure

    For example
    • Personal privacy
    • Efficient operation of government
    		  
                   
    Assess weight of each factor and decide whether factors against disclosure outweigh factors for disclosure

    Identifying factors for or against disclosure

    The underlying facts must support application of the factor in the particular case, and if it is applicable, the weight of the factor must be assessed according to the particular circumstances.
    Identifying public interest factors in a general way is not enough. The organisation must be satisfied that the disclosure of the particular information would lead to some harm or benefit to the particular public interest factor before it becomes relevant. The extent of the harm or benefit will influence the weight to be given to the factor.

    What is the public interest?

    1See Finn P D, A Sovereign People, A Public Trust, Essays on Law and Government: Vol 1, P D Finn (ed) (Law Book Co, 1995) pages 1-32, and Queensland Information Commissioner Annual Report 1995/96, at paragraphs 3.10-3.12. See also Re Eccleston and Department of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60 at paragraphs 35-75 for a general discussion of the public interest.
    The recognition that information received or created by government is held for the benefit of the public underpins the public interest balancing test. This has been described as government holding the information as the 'trustee' for the community.1
    Government information is not the property of the organisation that holds it. It is not 'owned' by any department or by the government of the day. It is held for the community.
    This does not mean that all information must be made available to every member of the community. As the holder of the information, the government must balance community interests and individual interests to achieve a reasonable outcome in terms of disclosure.
    Some community interests will favour disclosure while others go against disclosure. For example, there is a public interest in disclosing information that shows how government is using public resources to run correctional centres. But at the same time there is a public interest in not disclosing information that would help a prisoner to escape.
    2Director of Public Prosecutions v Smith [1991] 1 VR 63 at 75
    There is no complete list of public interest factors for or against disclosure. The public interest has been described as "a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and the wellbeing of its members."2
    Public interest factors are often factors that are common to all members of the community. For example, all members of the community have an interest in holding government accountable for its activities. However, the interests of a significant part of the community may give rise to a public interest factor.
    There are also cases in which there is a public interest-
    • in protecting the interests of individuals or private organisations (for example in protecting personal privacy or sensitive business information); or


    • in a particular person or class of people getting access to information (for example, in complainants getting information that fairly explains the way their complaint was handled).
    Simple curiosity does not give rise to a public interest factor favouring disclosure, even if a large segment of the community might be interested to know the information.

    What public interest factors can favour disclosure?

    Many public interest factors that favour disclosure can be grouped into one or more of the following categories.
    Government accountability
    At the heart of the FOI access scheme is the idea that government should be accountable to the people for how it carries out its functions. This accountability extends not only to government ministers but to departments, statutory authorities and individual officers in the public sector. Some comments on government accountability are set out below.
    Public participation in government
    Allied to government accountability is the recognition that the process of government policy making and decision-making can often be improved by constructive contributions from members of the public. These contributions are enhanced by disclosure of information that better informs those people who choose to take part. Some comments on public participation are set out below.
    Almost any information created or received by government may enhance government accountability and public participation in a particular case. This may include:
    • information that records reasons for decisions made;
    • information that was considered in the course of making a decision, for example, advice and recommendations, background papers, witness statements, policy options papers;
    • reports on performance of functions.
    The availability of information about the advice and opinions given by public servants and considered in making agency decisions can be significant in terms of understanding how government and agencies have carried out their functions. The more information that can be reasonably disclosed about these processes, the better equipped the public will be to make judgements on the performance of government.
    Information that shows the thinking processes behind government decisions is significant for the same reasons.
    Disclosure of advice and opinions (including advice and opinions that may not have been adopted) can help members of the community to understand what options have been considered and why they have been accepted or rejected. This allows for better informed debate about issues of current relevance. Community members are put in a better position to consider whether options have been properly adopted or rejected, and to raise arguments that a rejected option should be further investigated or an entirely new option should be investigated.
    Public awareness
    Government acts as a repository for large amounts of information. There may be a public interest in disclosing information simply because it will inform the community about matters of general concern.

    For example, there may be a public interest in disclosing information:
    • that will inform consumers about their choices in a particular market;
    • that will inform people about general issues like public health and safety;
    • for the purpose of research that may ultimately add to public awareness about issues of general concern.
    Special interest of class (Justice to an individual) While any person may apply for information, there can be a public interest in applicants from a particular class having access to information in which they have a special interest. For example, there may be a public interest in complainants getting information about how their complaint was handled. Or there may be a public interest in unsuccessful promotion applicants getting access to information that points to what changes they may have to make to improve their performance and their prospects for success in the future.
    In some cases, a factor of this type may mean that the balance of the public interest favours disclosure of information to one person when it might not be in the public interest to disclose it to the world at large.

    What public interest factors can go against disclosure?

    Many public interest factors that go against disclosure can be grouped into one of the following categories.
    Factors underlying exemptions that contain a harm test Most of the exemptions that have a public interest test require some harm to be shown before the information fits into that exemption. They may require something like a "prejudice" or a "substantial adverse effect". Or they may protect some right that is already recognised by the law, like legal professional privilege or legal obligations of confidence.
    In those cases, showing that the requirements of the exemption are satisfied points to a public interest factor against disclosure. For example, the exemption for information that would "pose a serious threat to the life or health of a person" points to an obvious underlying public interest factor against disclosure.
    Efficient and effective conduct of government operations
    If disclosure of particular information would prejudice the ability of government to carry out its functions on behalf of the community in an efficient and effective way, this will give rise to a public interest factor against disclosure.
    However, care must be taken to ensure that there is sufficient evidence to establish the prejudice. Mere reluctance to release information on the part of some officers is not a sound basis for such a finding.
    Nor will the fact that information has not previously been disclosed, or even that some alteration to existing procedures may be required if information is to be subject to disclosure, necessarily give rise to this factor. In some cases, the potential for disclosure may actually give rise to improvements in the functioning of the agency, representing a public interest factor favouring disclosure.
    Most valid reasons that give rise to this factor are reflected in existing exemptions.
    NB: The need to maintain efficient and effective conduct of government operations is not an exemption in itself. It is one factor that may need to be taken into account in a public interest balancing test. It can only arise for consideration if the elements of an exemption have been satisfied.
    Private interests (Fairness to an individual)
    The Privacy exemption and the Privacy scheme included in the Information Act reflect the underlying public interest in protecting personal privacy.
    A public interest factor may also arise in terms of ensuring fairness to an individual or private sector organisation, if, for example, there are allegations of wrongdoing in a document that are untested, or in relation to which there has been no chance for response.

    Factors that can't be raised

    The Information Act excludes 3 things from consideration:
    1. the reasons that access is being sought (s.17);
    2. the possibility that disclosure may result in embarrassment to, or a lack of confidence in, the Territory Government or a public sector organisation (s.50);
    3. the possibility that the applicant may misunderstand the information disclosed (s.50).
    A person may or may not choose to explain the particular reason or reasons why they are seeking information. If they do explain, those reasons may suggest public interest factors that favour disclosure. But any stated reason does not affect the public interest factors that are relevant.

    More information

    You can locate the decisions referred to below on one or more of the following websites:
    General discussions of the public interest
    Discussion of public interest favouring access to a particular person
    • Pemberton and The University of Queensland (1994) 2 QAR 293; Austlii website [1994] QICmr 32; QIC website (5 December 1994), at paragraphs 164-196
    • Willsford and Brisbane City Council (1996) 3 QAR 368; Austlii website [1996] QICmr 17; QIC website (27 August 1996), at paragraphs 15-18.
    Examples of application of the public interest test
    • KBN and Department of Families, Youth & Community Care (1998) 4 QAR 422; Austlii website [1998] QICmr 8; QIC website (30 June 1998)
    • Richardson and Queensland Corrective Services Commission (1996) 3 QAR 338; Austlii website [1996] QICmr 15; QIC website (16 August 1996)
    • Coulthart and Princess Alexandra Hospital and Health Service District (2001) 6 QAR 94; QIC website (10 August 2001)
    • Fotheringham and Queensland Health (1995) 2 QAR 799; Austlii website [1995] QICmr 24; QIC website (19 October 1995)
    • Cardwell Properties P/L & Williams and Department of the Premier, Economic & Trade Development (1995) 2 QAR 671; Austlii website [1995] QICmr 19; QIC website (29 June 1995)
    • Queensland Community Newspapers Pty Ltd and Redland Shire Council (1998) 4 QAR 262; Austlii website [1998] QICmr 2; QIC website (25 March 1998)
    • Australian Rainforest Conservation Society Inc and Queensland Treasury (1996) 3 QAR 221; Austlii website [1996] QICmr 5; QIC website (9 April 1996)
    Examples of public interest favouring access to a particular person
    • Bultitude and Princess Alexandra Hospital and District Health Service (2000) 5 QAR 335; Austlii website [2000] QICmr 1; QIC website (20 April 2000)
    • BKR and Queensland University of Technology; Queensland Nursing Council (1999) 5 QAR 70; Austlii website [1999] QICmr 4; QIC website (30 June 199

    Comments on accountability and public participation

    Australia is a representative democracy. The Constitution gives the people ultimate control over the government, exercised through the election of the members of Parliament. The effective operation of representative democracy depends on the people being able to scrutinise, discuss and contribute to government decision making.
    To do this, they need information. . the FOI Act has an important role to play in enhancing the proper working of our representative democracy by giving individuals the right to demand that specific documents be disclosed. Such access to information permits the government to be assessed and enables people to participate more effectively in the policy and decision making processes of the government.
    Australian Law Reform Commission/Administrative Review Council
    Report on Open Government (Review of the FOI Act) 1996
    Information is the lynch-pin of the political process. Knowledge is, quite literally, power. If the public is not informed, it cannot take part in the political process with any real effect.
    Fitzgerald Report 1989
    Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters.
    High Court of Australia Lange v ABC 1997
    The primary foundation for insisting upon openness in government rests upon the sovereignty of the people. Under a democracy, parliament is "supreme", in the sense that term is used in the phrase "parliamentary supremacy", but the people remain sovereign. They enjoy the ultimate power which their sovereignty confers. But the people cannot undertake the machinery of government. That task is delegated to their elected representatives ...
    ... the government can be perceived as the agent or fiduciary of the people, performing the task and exercising the powers of government which have been devolved to it in trust for the people.
    ... the information held by government is essentially the people's information being held on their behalf pursuant to this devolution of authority. ... The people's sovereignty ultimately determines their right to insist upon openness in government (underlining added).
    Thomas J of the High Court of New Zealand 1995
    Last Updated on
    13 January, 2012
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    FOI Attorney General/ Paul Pattison/ Mircevski/ Attorney Generals disclosure log/ corrupt conduct at ITSA
    From: fionabrown01@hotmail.com
    To: kate.palmer@ag.gov.au
    Subject: FOI
    Date: Mon, 29 Apr 2013 22:11:21 +1000

    Dear Kate,
    I have been given your email by Andra Eisenberg  of the Attorney Generals department and understand you can process my FOI request.
    I would appreciate if you could provide me with a copy of the  paper work and  process  on how your department handled the complaint of Mr Mircevski which brought to the Attorney Generals attention  the matter of the corrupt  Bankruptcy trustee Paul Pattison. I have received Mr Mircevski's permission  for this.
    Pattison has now been de- registered   and subsequently been made a bankrupt himself.
    It also has been revealed that the Inspector General in Bankruptcy Veronique Ingram  protected  Pattison.
    It was the responsibility of the Attorney General to act  on corrupt conduct in  Government departments in the AG portfolio.
    I have received  confirmation from the Attorney Generals department that  it is their policy to protect corrupt conduct in the AG portfolio even   when they become aware of it .
       I understand  this would be in conflict with the Attorney General's responsibility and integrity to do this.
    Therefore also  please supply me under FOI with the process the Attorney Generals Office  uses   for complaint handling .
    Thanking you
    Fiona Brown
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    FOI Attorney General/ Attorney Generals disclosure Log

     From: fionabrown01@hotmail.com
    To: andra.eisenberg@ag.gov.au
    Subject: RE: FOI inquiry [SEC=UNCLASSIFIED]
    Date: Mon, 29 Apr 2013 20:39:42 +1000

    Dear Andra,
    Thank you for your reply to my FOI.
    I have attached 3 emails received from Helen Daniels confirming that my complaint   with extensive evidence  was being was  examined by her and would be  then forwarded to   Robert McClelland. who at the time was  Attorney General.
    I understand from your response  that it is a policy of the Attorney Generals Department and it also  appears mandatory for all complaints received   regarding corrupt conduct in  departments  in the Attorney Generals portfolio to be covered and protected .
    I  believe you have failed  to adequately  address my request.
    I am therefore requesting again the process that Helen Daniels followed ,considering she confirmed  that the evidence was examined and also the process that the Attorney General Department follows  when  complaints are received .
    It is clear that the Attorney General has a responsibility  to have integrity and  not protect  corrupt conduct .
    Please provide me with  all paperwork filed by Helen Daniels  on my complaint regarding the serious corrupt conduct by senior staff at ITSA.
    Thanking you kindly
    Fiona Brown

    From: Helen.Daniels@ag.gov.au
    To: fionabrown01@hotmail.com
    CC: Glynis.Harwood@ag.gov.au; Adam.Jones@ag.gov.au; Jessica.Robinson@ag.gov.au; Bronwen.McGee@ag.gov.au
    Date: Mon, 10 Jan 2011 10:06:15 +1100
    Subject: RE: breaches of the Bankruptcy Act by ITSA [SEC=UNCLASSIFIED]
    UNCLASSIFIED
    Fiona
    I am the relevant senior manager in bankruptcy policy for correspondence.

    Helen

    Helen Daniels
    Assistant Secretary
    Business Law Branch
    From: Helen.Daniels@ag.gov.au
    To: fionabrown01@hotmail.com
    CC: Jessica.Robinson@ag.gov.au; Adam.Jones@ag.gov.au; Glynis.Harwood@ag.gov.au; Bronwen.McGee@ag.gov.au
    Date: Mon, 17 Jan 2011 10:16:06 +1100
    Subject: RE: ITSA file [SEC=UNCLASSIFIED]
    UNCLASSIFIED
    Good morning Fiona

    I understand that my executive assistant,  Glynis Harwood, explained that after examining your material  a draft response is then forwarded to the Attorney-General who will examine it, subject to his own competing priorities.  The Department is not in a position to advise when a reply will or will not be signed by the Attorney-General.  That is a matter for him.  The reference to an acting Attorney-General is not a matter the Department can advise on.

    Regards

    Helen

    Helen Daniels
    Assistant Secretary
    Business Law Branch
    From: Helen.Daniels@ag.gov.au
    To: fionabrown01@hotmail.com
    CC: Adam.Jones@ag.gov.au; Bronwen.McGee@ag.gov.au
    Date: Tue, 8 Feb 2011 09:49:50 +1100
    Subject: RE: ITSA file [SEC=UNCLASSIFIED]
    UNCLASSIFIED
    Dear Fiona
    I acknowledge this and your earlier emails.  I note that you are waiting for a response to your correspondence.  I am not in a position to advise a date when a response will be provided.

    Helen

    Helen Daniels
    Assistant Secretary
    Business Law Branch
    From: Andra.Eisenberg@ag.gov.au
    To: fionabrown01@hotmail.com
    CC: Frances.Brown@ag.gov.au
    Subject: RE: FOI inquiry [SEC=UNCLASSIFIED]
    Date: Wed, 24 Apr 2013 01:58:25 +0000

    UNCLASSIFIED
    Dear Fiona

    Thank you for your email of 14 April 2013. 

    I have consulted our complaints section within the Attorney-General’s Department.  They confirmed for me that the complaints form you referred to is only for internal complaints about internal matters within the Attorney-General’s Department and not external matters concerning external agencies (such as the Insolvency Trustee of Australia).  I provided you with a copy of that complaint form because your FOI request was for our internal complaints procedures.  As the AGD has no power to investigate external matters involving external agencies, not only was it not mandatory for Helen Daniels to fill in the complaints form, but it would have had no effect.

    If you wish to inquire about the complaints made by Mr Mirchevski to the Attorney’s Office, please contact the Attorney’s Office on 02 6277 7300 or kate.palmer@ag.gov.au.

    Regards



    Andra Eisenberg | Senior Legal Officer
    Freedom of Information and Privacy Section | Office of Corporate Counsel
    Australian Government Attorney-General's Department | 3 - 5 National Circuit, Barton ACT 2600
    T: +61 (2) 6141 3274  E:     Andra.Eisenberg@ag.gov.au   

    From: fiona brown [mailto:fionabrown01@hotmail.com]
    Sent: Sunday, 14 April 2013 12:59 pm
    To: Eisenberg, Andra
    Cc: Adam Jones (Adam.Jones@oaic.gov.au); O'Keefe, Quentin; Brown, Frances
    Subject: RE: FOI inquiry [SEC=UNCLASSIFIED]

    Hi Andra,
    Thank you for the FOI I received from you.
    I now refer to  the following form which would have been manditory for Helen Daniels to fill out when she dealt with my complaint regarding the Insolvency Trustee Service Australia.
    The complaint  contained extensive evidence of  systemic corrupt conduct by senior staff.
    Under Freedom of information can you please supply me with a copy of the  Complaints register  form  wich would have been filed by Helen Daniels after dealing with my complaint.
    I also am aware that you have CC Adam Jones @oaic.gov.au who tried to intimidate me  by telling me that my complaint had no grounds when I first made contact with  the Attorney Generals Department.
    Also as I am aware that the complaints by Mr Mirchevski  to the Attorney General on the corrupt trustee Paul Pattison that was being protected by the Inspector General in Bankruptcy Veronique Ingram was sent to the Attorney Generals Office which is separate from the Deparment  could you please h elp me with a contact phone number and email for them.
    Thanking you kindly
    Fiona Brown
    .


    https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjKrsRtZOp01vGpLs6e4gqHGeTD3NYCevWWnk2GwskcP_CkMiX5KItC_KV4ehbgMUbQ0M9x9F6BFAQszaMalC0oPLYufH70s167qtF32J8siwxd52igPZ_e-tpaZJrCaXA5H2dWvraXE10/s640/IMG_0005.jpg
    From: Andra.Eisenberg@ag.gov.au
    To: fionabrown01@hotmail.com
    CC: Adam.Jones@oaic.gov.au; Quentin.O'Keefe@ag.gov.au; Frances.Brown@ag.gov.au
    Subject: FOI inquiry [SEC=UNCLASSIFIED]
    Date: Wed, 10 Apr 2013 07:34:15 +0000
    UNCLASSIFIED
    Dear Fiona

    I refer to your FOI request of 27 February 2013.  In this most recent request, you requested the following:

    ·         A copy of the Attorney General’s Department service charter and complaint-handling policy

    ·         Statistics on complaints made to the AGD in the past 2 financial years.

    Decision

    I am authorised to make decisions in relation to this matter on behalf of this Department.  I am therefore releasing to you copies of the Department’s service charter and complaint handling policy.  I can also provide the following information regarding complaints made to the Department in the past two financial years.

    The 2010/2011 annual report identified 11 complaints against the Department in 2010/11.  The complaint statistics for 2011/12 are approximately a dozen (but this does not include complaints made directly to the marriage celebrants’ inbox or the disaster assistance inbox etc.

    Finally, with regard to the complaints of Mr Mircevki against Mr Paul Pattison, I am aware of two complaints made by Mr Mircevki to the Attorney-General but these complaints were made to the Office of the Attorney-General and not the Attorney-General’s Department.  While these two agencies may be confused, under the FOI Act, they are two totally separate agencies and your request was for complaints made to the Attorney-General.

    Right of review

    Should you wish to seek a review of my decision in this matter, you have two options.  You may seek an internal review by another senior officer of the Department.  If you wish to pursue this course of action, you should forward an application to me within 30 days of the date of this letter.  Alternatively, you may seek a review of the decision by writing to the Office of the Australia Information Commissioner (OAIC).  The OAIC also investigates complaints should you wish to complain about any aspect of the way in which your request has been handled.  Applications for review by the OAIC should be sent to GPO Box 2999, Canberra, ACT 2601 or enquiries@oaic.gov.au.  Further information can be found at www.oaic.gov.au.

    Yours sincerely




    Andra Eisenberg | Senior Legal Officer
    Freedom of Information and Privacy Section | Office of Corporate Counsel
    Australian Government Attorney-General's Department | 3 - 5 National Circuit, Barton ACT 2600
    T: +61 (2) 6141 3274  E:     Andra.Eisenberg@ag.gov.au   




    From: fiona brown [mailto:fionabrown01@hotmail.com]
    Sent: Wednesday, 27 February 2013 6:56 pm
    To: Eisenberg, Andra
    Cc: Bennett, Malcolm; O'Keefe, Quentin; Jones, Adam
    Subject: RE: FOI inquiry [SEC=UNCLASSIFIED]

    Hi Andra,
    Thank you for your response to my FOI.
    Please can you send me a copy of the Attorney Generals service charter and associated complaint-handling policy  and a copy of the Attorney General investigation policy and standards related to this policy.

     I am now aware that the Attorney Generals Department   have obviously attempted to cover-up and protect  evidence of systemic corrupt conduct at the Insolvency Trustee Service Australia. 
    I  do realize  Attorney Generals Department cannot investigate ITSA  directly,though you are aware it is a requirement the the Attorney Generals Department investigate my complaint considering the extensive evidence I provided. Furthermore it is clearly obvious that  this department fails to comply with the Australian Investigation Standards which is the minimum requirement for Government Departments.
    I also bring to your attention    another request I made....
    Information and dates regarding any complaints the Attorney General has received on the Bankruptcy Trustee Paul Pattison and Stuart Ariff and how they were handled according to the Attorney General's investigation policy
              I am aware of 2 complaints made to the Attorney Generals Department on  Paul Pattison by  Mr Mircevski. Paul Pattison was the corrupt Bankruptcy Trustee being protected by Veronique Ingram, Inspector General in Bankruptcy. Please  have another check of your records

    Also can you send me the statistics  on  complaints made to the Attorney Generals Department in the past 2 financial years.
    Thanking you kindly
    Fiona Brown

    From: Andra.Eisenberg@ag.gov.au
    To:     fionabrown01@hotmail.com
    CC:     Malcolm.Bennett@ag.gov.au; Quentin.O'Keefe@ag.gov.au; Adam.Jones@ag.gov.au
    Subject: FOI inquiry [SEC=UNCLASSIFIED]
    Date: Thu, 21 Feb 2013 04:00:16 +0000
    UNCLASSIFIED

    Dear Fiona

    Freedom of Information Request

    I refer to your FOI request of 19 November 2012 in which you requested [documents relating to] the process that Helen Daniels followed and any documents and emails sent to Veronique Ingram [relating to Fiona Brown’s complaint to the Attorney General about the conduct of Senior Management at ITSA]…… and information and dates regarding any complaints the Attorney General has received on the Bankruptcy Trustee Paul Pattison and Stuart Ariff and how they were handled according to the Attorney General's investigation policy.
    Decision
    Pursuant to arrangements approved by the Secretary of this Department under section 23 of the FOI Act, I am authorised to make decisions in relation to this matter on behalf of the Department.

    Section 24A of the FOI Act permits an agency to refuse a request if all reasonable steps have been taken to locate the documents sought and it is satisfied that the documents do not exist or cannot be found.  After having made appropriate searches and enquiries, I can confirm that this Department does not hold documents of the type that you are seeking.

    1.     Specifically, with regard to the first part of your request:

    [Documents relating to] the process that Helen Daniels followed and any documents and emails sent to Veronique Ingram [relating to Fiona Brown’s complaint to the Attorney General about the conduct of Senior Management at ITSA],

    there are no documents that you are seeking because, as the AGD does not have the power to conduct an investigation of ITSA, there was no investigation and no documents relating to an investigation.  I am therefore obliged to refuse this part of your request under s 24A of the Act.

    2.     With regard to the second part of your request:

    Information and dates regarding any complaints the Attorney General has received on the Bankruptcy Trustee Paul Pattison and Stuart Ariff and how they were handled according to the Attorney General's investigation policy,

    We cannot process a request simply for information as a request under the FOI Act needs to be for specific documents.  However, we have attempted to locate documents relating to complaints received by the AGD on the bankruptcy trustees, Paul Pattison and Stuart Ariff and how these complaints were handled but could not locate any documents.  I can therefore confirm that the AGD does not hold these kinds of documents.
    Right of Review
    Should you wish to have my decision in this matter reviewed, you have two options.  Firstly, you are entitled to request an internal review of my decision by a senior officer of this Department.  Should you wish to pursue this option, you should write to me within 30 days of receiving this letter.  Alternatively, you are entitled to request a review of my decision by the Office of the Australian Information Commissioner (OAIC).  Should you wish to pursue that course and action you should write to the OAIC, within 60 days of receiving this letter, at GPO Box 2999, Canberra, ACT, 2601.  You are also entitled to make a complaint to the OAIC about the way the Department handled your request.

    Yours sincerely




    Andra Eisenberg | Senior Legal Officer
    Freedom of Information and Privacy Section | Office of Corporate Counsel
    Australian Government Attorney-General's Department | 3 - 5 National Circuit, Barton ACT 2600
    T: +61 (2) 6141 3274  E:     Andra.Eisenberg@ag.gov.au   



    From: fiona brown [mailto:fionabrown01@hotmail.com]
    Posted by at No comments:
    FOI reply Attorney General/Helen Daniels Attorney Generals Department/ Insolvency Trustee Service Australia/ Attorney Generals Disclosure Log
    It is clear from the response I received from my Freedom of Information request of the Attorney General that this department has a policy  of protecting serious corrupt conduct in Government departments. This is why all the complaints are fucked over.
    This department has no investigation policy or complies to any standards. It is clear that the Attorney General is aware of corrupt conduct but fails to act on these serious situations.
    Following is the reply received from the AG Department.......................
    From: Andra.Eisenberg@ag.gov.au
    To: fionabrown01@hotmail.com
    CC: Frances.Brown@ag.gov.au
    Subject: RE: FOI inquiry [SEC=UNCLASSIFIED]
    Date: Wed, 24 Apr 2013 01:58:25 +0000

    UNCLASSIFIED
    Dear Fiona

    Thank you for your email of 14 April 2013. 

    I have consulted our complaints section within the Attorney-General’s Department.  They confirmed for me that the complaints form you referred to is only for internal complaints about internal matters within the Attorney-General’s Department and not external matters concerning external agencies (such as the Insolvency Trustee of Australia).  I provided you with a copy of that complaint form because your FOI request was for our internal complaints procedures.  As the AGD has no power to investigate external matters involving external agencies, not only was it not mandatory for Helen Daniels to fill in the complaints form, but it would have had no effect.

    If you wish to inquire about the complaints made by Mr Mirchevski to the Attorney’s Office, please contact the Attorney’s Office on 02 6277 7300 or kate.palmer@ag.gov.au.

    Regards

    Clearly this skank is attempting to coverup for the complete failure of the Attorney General to act when he or she is aware of the atrocious conduct in Government departments



    Andra Eisenberg | Senior Legal Officer
    Freedom of Information and Privacy Section | Office of Corporate Counsel
    Australian Government Attorney-General's Department | 3 - 5 National Circuit, Barton ACT 2600
    T: +61 (2) 6141 3274  E:     Andra.Eisenberg@ag.gov.au  
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