Administritive Law Suggested Answer

5003LAW Administrative Law – Possible solution to 2013 Take Home Assessment

Question 1 – Further relevant information

(a) Jurisdiction – Commonwealth

(b) Adequacy of reasons

• No requirement for reasons in Patents Act

• No requirement under common law
o Osmond upheld long line of authority that reasons do not need to be provided
o Sankey v Whitlam showed that can get access to documents setting out reasons if bring an action and seek discovery using court procedures and rules

• General statutory duty to provide reasons
o ADJR Act s 13 unless AAT Act applies: ADJR Act s 13(11)(a)
o Here AAT Act applies: Patents Act s 224(1)
o AAT Act s 28(1) requires reasons be provided
o Some reasons are provided in Calculus letter to Bonnie
o If consider reasons inadequate can apply to AAT to get a further statement of reasons: AAT Act s 28(5)
 Standing and thresholds for ss 27(1) and 28(1) considered later and satisfied by Bonnie

[A good answer might be expected to argue that the ADJR Act could have application if the Calculus decision was under the Patents Act s 46 as in those circumstances the Patents Act s 224(1) and AAT Act s 28(5) do not apply. The ADJR Act s 13(11)(b) is not applicable because the reasons proffered are inadequate and proper reasons for the decision, as required by the ADJR Act s 13, AI Act s 25 D, and so on, have not been provided].

• What are adequate reasons?
o Act Interpretation Act s 25D – must set out findings on material questions of fact and refer to evidence and materials on which findings based
o AAT Act s 28(5) – must set out findings on material questions of fact and refer to evidence and materials on which findings based
o Soldatow – must be sufficient to enable assessment whether decision made for proper purposes, involved errors of law and took into account relevant considerations
o Wu Shi Liang – need to be reasonable and not overly critical when assessing adequacy

• Were reasons proffered adequate?
o Arguably reasons inadequate because:
 Does not identify statutory basis for decision – ss 32 or 46?
 Do not outline reasoning process as unclear whether decision made under ss 32 or 46
 No explanation why Bonnie no longer an inventor
 Does not explain why “customer service deadlines” relevant
 Does not explain how took Customer Service Charter into account
 Does not explain how evidence in Clyde’s letter was relevant

(c) Freedom on information

• FOI Act s 11 provides right of access to information subject to exemptions

• Should ask for, at least:
o Copies of evidence relied on including Clyde’s letter
o Copies of delegation authorising Calculus
o Copies of patent, Manual of Practice and Customer Service Charter
o Any other documents relied on by the decision maker, including a copy of the relevant file

• If documents not provided then might make FOI Act s 15 request

• Exemptions?
o Internal working documents – FOI Act s 47C – documents that deal with internal deliberative processes
 Argue public interest to disclose relying on Howard factors:
• Not high office matters (eg Cabinet)
• Not about policy development
• Not likely to inhibit candour and frankness
• Not likely to confuse or lead to unnecessary debate
• Not unfair or likely to prejudice
 Manual of Practice and Customer Service Charter should be no problem
 Might be some problems with ant internal memos, file notes, and the like
 Should be disclosed, subject to blocking out problematic sections (FOI Act s 22)

o Personal privacy – FOR Act s 47F – personal letters, especially Clyde’s letter
 Exempt because likely to contain personal details like Clyde’s address
 Argue that unlike Colakovski here Bonnie will already know these personal details because of their existing relationship and Clyde unlikely to suffer a detriment
 Should be disclosed, subject to blocking out problematic sections (FOI Act s 22)

(d) Conclusion

• Appears reasons provided that were inadequate and further better reasons should be provided following AAT application. May also request further information as documents and pursue FOI application if they are not provided
• If does not get a reasonable response can try the Ombudsman

Question 2 – Merits review

(a) Jurisdiction – Commonwealth

(b) Availability of merits review

• If decision made under Patents Act s 46 then no review available to AAT: Patents Act s 224(1) and AAT Act ss 25(1) and (4)
o Might appeal directly to court on questions of law: ADJR Act s 5(1)

• If decision made under Patents Act s 32 then review available to AAT: Patents Act s 224(1) and AAT Act ss 25(1) and (4)
o Application in writing: AAT Act s 29(1)
o Within 28 days of decision: AAT Act s 29(2)
o Can get an extension: s 29(7)
o Pay fee: AAT Act s 29A(1)
o AAT exercises all powers and discretions subject to the Patents Act: AAT Act s 25(3)
o AAT affirms, varies or sets aside (and either substitutes or refers) decision under review: AAT Act s 43(1)

• Standing
o Bonnie has standing because her interests are directly affected by the decision – she has been denied a possible patent: AAT Act s 27(1)

• Correct and preferable decision (Drake No 1):
o Correct application of the law
o Preferable application of discretion to correct facts
o On the material before the AAT

(c) Substantive arguments

• Fact
o Clyde’s letter that Bonnie not an inventor and not part of application
 Bonnie has an alternative explanation for these facts and that explanation should be preferred (albeit it has not been heard by AAT yet)
• Swift an illustration of preferring other facts

• Discretion
o Patents Act s 32 provides a discretion “may”
 Decision maker had choices between legitimate alternatives and here should have considered Bonnie’s letter as seeking a delayed examination and not as a dispute requiring settlement
• Should have exercised discretion not to address this as a dispute to be settled under s 32
 Should not have blindly followed Customer Service Charter timelines
 Should have taken Bonnie’s request for delayed examination into account
 Not clear that Clyde’s letter relevant form for request about dispute: Patent Regulations r 3.6

• Law
o Query whether Calculus had appropriate delegation from Commissioner to make decision: Patents Act s 32
o Query whether proper request made under Patents Act s 32: Patent Regulations r 3.6
o Query whether Bonnie’s letter a “dispute” for the purposes of Patents Act s 32
o Query whether Bonnie’s letter should be resolved under Patents Act s 46 and required mandatory delay
o Assert that failed to properly consider Bonnie’s request

(d) Conclusion

• Merits review to AAT available and various credible arguments possible. Bonnie might also have fresh evidence available for information (reasons and documents) for AAT