Bienstein v Attorney General [2010] FCAFC 45

Bienstein v Attorney General [2010] FCAFC 45

The appeal was dismissed because the Full Court was not persuaded that the trial judge's judgment involved appealable error. The FOI Act did not give Ms Bienstein a right to compel an actual decision after a deemed refusal; s 11(1)(a) confers a right to obtain access, and once AAT review is invoked the statutory deemed-refusal and review processes in ss 55, 56 and 58 apply. The circumstances did not justify disturbing the costs order, and the appeal did not raise matters of public importance sufficient to displace the usual rule that costs follow the event.

Jurisdiction
Australia
Judgment Date
20 May 2010
Procedural Posture
Appeal From the Federal Court of Australia / Full Court Judgment on Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['request for Access to Documents' 'deemed Refusal Under the Freedom of Information Act 1982 (cth)' 'aat Power to Compel an Actual Decision' 'adjr Act Review' 'costs']
['practice and Procedure' 'administrative Law' 'freedom of Information'] ['request for Access to Documents' 'deemed Refusal Under the Freedom of Information Act 1982 (cth)' 'aat Power to Compel an Actual Decision' 'adjr Act Review' 'costs']

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Procedural Posture

Appeal From the Federal Court of Australia / Full Court Judgment on Appeal

Legal Issues

  1. 1 ['Whether, when dealing with a deemed decision to refuse access to documents, the AAT has power to compel the recipient of a request to make an actual decision in response to the request.' 'Whether s 11(1)(a) and s 15(5)(b) of the Freedom of Information Act 1982 (Cth) entitled the appellant to insist upon an actual decision in response to her request for access to documents.' "Whether the trial judge's costs order should be disturbed on grounds including alleged failure to follow authority and failure to accord procedural fairness."]

Ratio Decidendi

The appeal was dismissed because the Full Court was not persuaded that the trial judge's judgment involved appealable error. The FOI Act did not give Ms Bienstein a right to compel an actual decision after a deemed refusal; s 11(1)(a) confers a right to obtain access, and once AAT review is invoked the statutory deemed-refusal and review processes in ss 55, 56 and 58 apply. The circumstances did not justify disturbing the costs order, and the appeal did not raise matters of public importance sufficient to displace the usual rule that costs follow the event.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The Appellant pay the Respondents' costs of the appeal."]