FEDERAL COURT OF AUSTRALIA

Mentink v Minister for Home Affairs [2013] FCAFC 113

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the primary judge on 12 February 2013 be set aside.

3.    Time be extended under s 11(1)(c) of the ADJR Act to enable the appellant to file and serve the originating application for judicial review relied on below.

4.    There be no order as to costs.

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

REASONS FOR JUDGMENT

EDMONDS J:

1    I have had the advantage of reading and considering in draft the reasons of both Griffiths J and Pagone J. I am grateful to both.

2    I am of the view that the appeal should be allowed for the reasons given by Griffiths J.

3    I also agree with the orders proposed by his Honour.

Associate:

Dated:    21 October 2013

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

4    I have had the advantage of reading the reasons for judgment of Pagone J in draft form. I am grateful to his Honour for setting out much of the relevant background material to the appeal, which I will not repeat. For the following reasons I take a different view of certain matters and consider that the appeal should be allowed.

Some additional relevant background material

5    To provide some further relevant factual context, it is necessary to set out some additional material contained in the appellant’s affidavit filed by him in support of his application for an extension of time.

6    As Pagone J points out, on 12 May 2012 the appellant wrote to the Minister raising various allegations of corrupt conduct by the Australian Commission for Law Enforcement Integrity (the ACLEI). Those allegations related to the ACLEI’s handling of various complaints of corruption made by the appellant in respect of investigations carried out by both the Commonwealth Ombudsman’s Office (Ombudsman) and the Australian Federal Police (AFP). Those investigations related to matters dating back to 2003. In broad terms, the appellant contended that the AFP had been complicit in the theft of his yacht in East Timor after the appellant was deported from there in late 2003. The appellant also complained that the AFP had improperly disclosed to the Indonesian police the appellant’s convictions between 2003 and 2009. The appellant’s complaints were dismissed by the AFP in 2004. He subsequently complained to the Ombudsman concerning the AFP’s conduct, alleging among other things that the AFP had improperly dismissed his complaints. Later in 2004, a delegate of the Ombudsman, Mr Nicholas Sellars, dismissed the appellant’s complaint.

7    On 8 November 2008, the appellant made a further complaint to the ACLEI complaining of corruption issues in the AFP. His complaint was investigated by Mr Philip Moss, who occupied the office of the Integrity Commissioner. Both the ACLEI and the Integrity Commissioner are constituted by the Law Enforcement Integrity Commissioner Act 2006 (Cth) (LEIC Act).

8    On 6 December 2011, the appellant was advised by the Executive Director of the ACLEI (Mr Stephen Hayward) that Mr Moss had decided to cease investigating the matters he had raised.

9    The appellant made a request under the Freedom of Information Act 1992 (Cth) (the FOI Act) for access to information relating to the ACLEI’s investigation of his complaints. On 15 February 2012, he was provided with access to various documents (with redactions) relating to the ACLEI’s investigation and its reasons for dismissing his complaint.

10    Prior to early 2010, the appellant was unaware that the Integrity Commissioner had referred the complaints he had made to the ACLEI to the AFP for investigation. In early 2010, the appellant was advised in a letter from Commissioner Negus of the AFP that his complaint had been referred to the AFP for investigation by the Integrity Commissioner. The appellant made various inquiries and discovered that an AFP officer (Mr Mark Walters), who had been involved in the matters which occurred in East Timor in 2003 and 2004 about which he complained to both the AFP and the Ombudsman, was involved in the AFP’s investigation of his complaint lodged in November 2008. At the same time, the appellant discovered that Mr Sellars (who, as noted above, had previously investigated and dismissed his complaint to the Ombudsman), was then working in the ACLEI. The appellant raised his concerns about these matters in letters he sent to the AFP and ACLEI in April 2010.

11    A decision was take in mid-2010 to return the appellant’s complaints for investigation to the ACLEI. Among the material subsequently obtained by the appellant under the FOI Act is an email dated 16 June 2010 from the executive director of the ACLEI (Stephen Hayward) to the Integrity Commissioner. The email records that the AFP was unable to continue to investigate the matter because the appellant had raised issues concerning Mr Walters. The email also refers to what is described as the “other piece of sensitivity surrounding the new information” provided by the appellant to the ACLEI, being the appellant’s concerns regarding Mr Sellars’ involvement in the ACLEI investigation and his past involvement in the Ombudsman’s investigation.

12    The ACLEI resumed its investigation on 1 July 2010. The investigation was conducted by Mr Peter Bache. Among the FOI materials obtained by the appellant in 2012 is an email dated 2 July 2010 sent by Mr Bache at the ACLEI to Mr Jason Byrnes, who had been conducting the investigation at the AFP. That email was in the following terms:

Jason,

We sent a letter to your Commissioner yesterday advising that the IC had reconsidered and ACLEI would now investigate this matter. I am on leave Monday and Tuesday next week, so I will contact you later in the week with a view to obtaining what documents you have in relation to this and perhaps finding a way forward. I think the immigration issues will be quite easily disposed of, but I anticipate that the issue of the sale of the yacht may take some more digging. Hopefully not.

13    Under the FOI Act materials, the appellant also obtained another email dated 29 July 2010 which had been sent by Mr Hayward at the ACLEI to Mr Sellars and also copied to Mr Bache. That email was in the following terms (noting the redactions made under the FOI Act):

Nick,

The matter was referred to the AFP to investigate. Recently, they have written to eh (sic) Integrity Commissioner requesting that due to the allegations against Mr Mark Walters in PRS made by Mr Mentink, that the I/C reconsider the matter and take back the investigation.

Peter Bache is investigating and has recently …………… s 37(2) ………… and has ……………. s 37 ………….. , I expect that the matter will be reconsidered under s 42, pending the outcome of ……………. s 37 …………….. s 37

In short, the matter is under investigation.

The matter is progressing.

An outcome of our investigations should be available to Mr Mentink in the near future.

Please discuss with Peter to ensure accuracy.

Steve. (Emphasis added)

14    In response to his FOI request, under the FOI Act, the appellant also obtained another email dated 8 October 2010 from Mr Sellars to Mr Hayward, which was copied to the Integrity Commissioner and at least one other person whose name is redacted from the document. The heading of the email is “PJC on ACLEI-request for information”. The text of the email is as follows:

Steve

Tim Watling has asked to again be provided with the information about Mr Mentink. He wished to have a written record direct from us.

Accordingly, can you approve the following draft email?

(Emphasis added).

15    These two emails indicate that, despite his earlier involvement in dismissing the appellant’s complaints in 2004 when he was working in the Ombudsman’s office, and despite the specific concerns raised by the appellant in April 2010 concerning Mr Sellars, Mr Sellars continued to be involved in the ACLEI’s investigation of the appellant’s complaints.

16    Other material obtained by the appellant under the FOI Act revealed that Mr Bache had not completed his investigation when he left the ACLEI in approximately April 2011. Despite this fact the appellant obtained several emails under FOI which indicate that Mr Bache continued to provide information to the ACLEI officer who was tasked with completing the investigation.

17    On 6 December 2011, Mr Hayward wrote to Mr Mentink informing him that the Integrity Commissioner had decided under s 42(3)(e) of the LEIC Act to take no further action in respect of the appellant’s complaint because the Integrity Commissioner did not consider that further investigation was warranted.

18    Upon receipt of that letter, the appellant made a further FOI Act request to the ACLEI for documents relating to its investigation. The ACLEI provided the appellant with various redacted documents on 15 February 2012. After an internal review of the ACLEI’s initial FOI decision, it provided additional documents and information to the appellant on 29 March 2012.

19    On 10 March 2012, the appellant wrote to Senator Mason making various complaints, including that the AFP may have acted inappropriately in its investigation of the appellant’s complaints. A copy of the appellant’s letter to Senator Mason was not tendered in evidence below. But a letter dated 27 March 2012 from Senator Mason to the Minister was in evidence below. That letter revealed that Senator Mason referred the appellant’s correspondence to the Minister with a request for assistance.

20    Also in evidence was an undated letter (but believed to have been sent on 2 May 2012) from the Minister to Senator Mason regarding the appellant’s correspondence and “his complaint of corrupt conduct and inadequate investigative action by law enforcement officers”. The letter records the fact that the appellant “takes issue” with alleged actions by the following agencies: the AFP, the Ombudsman and the ACLEI. Because of its importance, it is appropriate to set out the relevant terms of the Minister’s letter:

…

The Australian Federal Police

In relation to the AFP, Mr Mentink alleges that AFP officers dealt corruptly with him between 2003 and 2009, specifically by providing information of his past convictions to Indonesian police and being complicit in the theft of his yacht from Dili, East Timor.

The AFP investigated the claims made by Mr Mentink and have advised him that all disclosures made to the Indonesian police were lawful and appropriate for the purposes of preventing and investigating Commonwealth offences. The AFP also advised that they do not have the jurisdiction to investigate the theft of Mr Mentink’s vessel from Dili.

The Commonwealth Ombudsman

Mr Mentink made a formal complaint to the Commonwealth Ombudsman regarding his treatment by the AFP in 2004. He alleges that his complaint was improperly dismissed and that, in dismissing it, the Ombudsman only dealt with one aspect of his complaint and neglected other points raised by Mr Mentink.

The Ombudsman advised that it considered issues raised by Mr Mentink and did not identify any evidence of corrupt conduct by any member of the AFP.

Australian Commission for Law Enforcement Integrity

Mr Mentink approached ACLEI in November 2008 with his complaint alleging corrupt conduct by members of the AFP. After initially referring the complaint back to AFP’s Professional Standards Unit for investigation in 2009, the Integrity Commissioner reconsidered the way the issue should be handled as it became apparent that some of Mr Mentink’s issues related to officers then working within the Professional Standards Unit. ACLEI took on full responsibility for the investigation in June 2010 under s 26(1)(a) of the Law Enforcement Integrity Commissioner Act 2006.

Subsequently, in 2011 ACLEI decided to take no further action on Mr Mentink’s complaint. I have been informed that in the course of its investigation, ACLEI reviewed materials provided by both Mr Mentink and the AFP, and also made further inquiries of its own. In addition, the full investigation was kept under review.

The decision to cease investigation and take no further action was based on a number of factors:

•    the sale and transfer documents provided by the relevant authorities for Mr Mentink’s yacht were in good order, and there was no reason for the AFP to question the information provided from these authorities

•    Mr Mentink’s concerns had already been fully considered and investigated by both the AFP and the Commonwealth Ombudsman, who both found no evidence of inappropriate conduct by members of the AFP

•    ACLEI’s own investigations and inquiries did not reveal any evidence of corrupt conduct by any member of the AFP

•    the Commissioner lacked jurisdiction to launch an investigation into the actions of the East Timorese Government or its officials.

I trust that this information will be of use to you.

21    It is notable that the letter makes no reference to the appellant’s complaint regarding the role of Mr Sellars and his apparent conflict of interest.

22    Senator Mason did not pass on to the appellant a copy of the Minister’s letter until late August 2012.

23    In the meantime, not having heard from Senator Mason, the appellant wrote a letter dated 12 May 2012 direct to the Minister. His letter was expressed to be a notification of an ACLEI corruption issue under s 154 of the LEIC Act. The appellant asked the Minister to appoint a special person to investigate the ACLEI’s conduct of his complaints of corruption. He attached to his letter a 15 page document which he described as “an interim analysis” of the information he had obtained from the ACLEI under the FOI Act. Both in his letter and in the interim analysis, the appellant emphasised that his complaint was not directed to the ACLEI’s decision to dismiss his complaints, but rather was directed to its handling of the matter. In particular, the appellant alleged that the material he had obtained under the FOI Act revealed what he alleged to be “astonishing aspects of ACLEI’s performance in this matter”, namely:

1.    inability/unwillingness to get facts straight,

2.    a preference for unchecked information derived from tabloid reports on the internet,

3.    unquestioning acceptance of information from the AFP, the law enforcement agency complained of which has an appalling record of complaint handling in this matter from 2004 onwards,

4    no sign of crucial milestone documents such as reports of previous PRS investigations,

5    inability to analyse facts, whether true or not, verified or not, complete or not,

6.    complete disregard for the oversight and reporting required by the Integrity Commissioner,

7.    no feed back to the informant, no attempt to make contact to check data or to request information or clarification during three years (e.g. had I been advised in June 2009 that the matter had gone to the PRS I would have protested),

8.    evidence in early July 2010 of intent to close the matter before receiving anything from the AFP,

9.    no real, original investigation, but a preoccupation of protecting ACLEI in the face of external inquiries, with one exception –

10.    Peter Bache’s only apparent attempt that investigation around 10 November 2010, records of which were inexplicably lost,

11.    inexplicable delays in progressing the matter, compounded by the file changing hands at least twice,

12.    failure to recognise the problematic step of requesting the AFP to investigate given that in part I had alleged corruption in the AFP’s complaint handling system, and the unacceptable involvement of Mark Walters as manager of the PRS (only the AFP was awake to that),

13.    failure, in the face of my complaints, to discern the problem of Nicholas Sellars’ presence in ACLEI’s executive and proven involvement in the matter, compounded by the fact that ACLEI did file a “note” from another former employee at the office of the Ombudsman in 2004 giving the appearance that nothing was amiss, but no document referring to Sellars”. (Emphasis and underlining in original).

24    It is to be noted that one of the matters specifically complained of in item 13 above was the involvement of Mr Sellars in handling the appellant’s original complaint to the Ombudsman, as well as his ongoing involvement as an officer of the ACLEI in its subsequent investigation of the appellant’s complaints (which included a complaint concerning the Ombudsman’s earlier investigation).

25    By letter dated 6 July 2012, the Minister responded to the appellant’s letter dated 12 May 2012. The Minister’s letter provided a brief explanation of his decision to take no further action in respect of the appellant’s complaints and his refusal to authorise a special investigation under s 156(2) of the LEIC Act. The body of the letter is in the following terms:

Thank you for your letter dated 12 May 2012, in which you raise allegations of corrupt conduct by the Australian Commission for Law Enforcement Integrity (ACLEI) and express your hope that I authorise a special investigation into the matter under subsection 156(2) of the Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act).

I note that you raised similar allegations of corruption in your letter to Senator the Hon Brett Mason on 18 March 2012. This letter was forwarded to me as the responsible Minister.

Consistent with my response to Senator Mason on 2 May 2012, ACLEI’s decision to cease the investigation to your complaint was based on a number of factors, including the previous investigations by the Australian Federal Police and Commonwealth Ombudsman, as well as jurisdictional issues in relation to international elements.

Based on this information I advise that no further action in this matter will be taken, in accordance with subsection 156(2)(c) of the LEIC Act.

26    The Minister’s letter dated 6 July 2012 makes express reference to his earlier letter dated 2 May 2012 to Senator Mason, which, as noted above, was not passed to the appellant until August 2012. After obtaining a copy of that letter in August 2012, the appellant then made a further FOI Act request to the Minister, seeking access to all the documents relating to his 10 March 2012 letter to Senator Mason within the period 10 March 2012 until 30 August 2012. He was advised that his request had been referred to the Attorney-General’s Department for processing. In November 2012, he was provided with partial access to several documents in response to that FOI request. One of those documents was an email dated 11 April 2012 from an officer in the Attorney-General’s Department to an unidentified officer at the ACLEI which referred to Senator Mason’s correspondence with the Minister regarding the appellant’s allegations of corrupt treatment by the AFP and the ACLEI. The officer of the Attorney-General’s Department explained that he or she was preparing a response for the Minister to send to Senator Mason advising of the actions and final decisions of the AFP, the ACLEI and the Ombudsman. The officer sought what he described as “some standard, summary words from ACLEI about the actions that have been taken in regards to Mr Mentink’s complaint’.

27    The FOI Act material obtained by the appellant also included a document which is headed “ACLEI response”. That document was presumably created in response to the request of the Attorney-General’s Department officer referred to immediately above. The document summarised the background to the ACLEI’s investigation of the appellant’s complaints lodged in November 2008. The document stated that, in deciding on 17 October 2011 to take no further action because he did not consider that further investigation was warranted, the Integrity Commissioner took into account the following matters:

•    his lack of any jurisdiction over the actions of the East Timorese Government or its officials and the actions of the United Nations;

•    his lack of jurisdiction over the actions of Australian officials who are not staff members of the law enforcement agency under the LEIC Act;

•    that the AFP would have had no reason to question any information that was given by the relevant authorities that the ownership of the Larus II was properly transferred;

•    that Mr Mentink’s concerns had previously been considered by the AFP and by the Commonwealth Ombudsman, with no evidence being found of inappropriate conduct by any member of the AFP;

•    additional investigation by ACLEI had not revealed evidence of corrupt conduct on the part of any member of the AFP; and

•    the other demands on ACLEI’s resources, which include matters that are more current, that raise much more general questions of public interest and that have a greater likelihood of producing a sound and robust result.

28    That document also made reference to the appellant’s concerns arising from a file note which he had obtained under an earlier FOI Act request. The document records that the appellant mistakenly believed that the file note was written by Mr Sellars, when in fact it was written by another staff member of the ACLEI who had also worked in the Ombudsman’s office during the period of the appellant’s initial complaints to the Ombudsman. The relevant parts of the ACLEI document relating to these matter are as follows:

•    Mr Mentink’s letter raises a particular concern about a perceived bias on an ACLEI staff member. ACLEI confirms that the staff member has not had any role in any decision relating to ACLEI’s investigation including the decision to cease investigation.

…

•    in addition, Mr Mentink’s email of 21 February 2012 also expressed concern that the FOI response included a file note written by a staff member of ACLEI whom he assumed (wrongly) to be Mr Sellars, disclosing that the author of the file note had worked in the Commonwealth Ombudsman’s office during the period of Mr Mentink’s initial complaint to the Ombudsman, but had no recollection of dealing with Mr Mentink. (Mr Mentink had repeatedly stated that he is concerned with Mr Sellars, who apparently managed his complaint to the Commonwealth Ombudsman in 2004, is now working at ACLEI and may have negatively influenced ACLEI’s investigation).

…

•    ACLEI completed the internal review of the FOI decision and released additional documents to and information to Mr Mentink on 29 March 2012. The letter communicating internal review decision made it clear that the author of the file note about which Mr Mentink was concerned was not Mr Sellars, and disclosed the identities of certain ACLEI staff on the basis that their employment at ACLEI is publicly known. (Emphasis added)

29    It is important to note that, while the ACLEI document makes reference to the appellant’s concerns regarding Mr Sellars’ role, it says nothing of any substance in response to that particular complaint. That is to be contrasted with the assurance provided elsewhere in the ACLEI response that another former Ombudsman’s officer who, like Mr Sellars, later worked for the ACLEI had no involvement in the ACLEI investigation. The omission to deal with the substance of the appellant’s complaint regarding Mr Sellars is, on its face, curious given that other material obtained by the appellant under the FOI Act indicated that Mr Sellars was involved in the ACLEI’s investigation of his complaints (see the two emails referred to in [13] and [14] above).

30    On 15 October 2012, the appellant filed in the Court his application for an extension of time. Then, in a letter dated 16 November 2012 addressed to the Minister, the appellant asked the Minister to reconsider his decision of 6 July 2012. He claimed that, based on the material he had obtained under the FOI Act, there was apparently no document referring to the appellant’s correspondence of 12 May 2012 and that the documents were all confined to the response to Senator Mason’s correspondence. Further, the appellant complained again that Mr Sellars had a conflict of interest. The appellant invited the Minister to reconsider his decision of 6 July 2012.

31    The Minister replied shortly thereafter stating that the appellant’s letter dated 16 November 2012 had been referred to the Minister’s solicitors because the appellant had commenced Federal Court proceedings.

The primary judge’s reasons for refusing to extend time

32    Justice Pagone has summarised the primary judge’s reasons for refusing an extension of time under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Accordingly, I need only emphasise certain particular matters.

33    The learned primary judge made reference in [2] of her reasons for judgment (R) to Wilcox J’s decision in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and to some of the matters identified there at 348-349 as relevant to the discretion to extend time. Those matters are as follows:

(a)    Section 11 does not place any onus of proof upon an appellant for extension and special circumstances need not be shown, but the Court generally will not grant an extension unless positively satisfied that it is proper to do so. Prima facie, proceedings commenced outside the 28 day time period will not be entertained. The appellant must show an acceptable explanation of the delay and that it is fair and equitable in the circumstances to extend time.

(b)    Action taken by the appellant other than by making an application for review under the ADJR Act is relevant to the consideration of whether an adequate and acceptable explanation for delay has been provided.

(c)    Prejudice to the respondent is a material factor weighing against extending time.

(d)    The mere absence of prejudice to the respondent is not enough to justify the grant of an extension. Public interest considerations may also arise. A delay which may result if the application is successful in producing adverse effects for third parties weighs against the grant of an extension.

(e)    The merits of the substantive application are properly to be taken into account in considering whether to extend time. Considerations of fairness between the appellants and other persons in a similar position are also relevant to the exercise of the Court’s discretion.

34    In circumstances where the Minister accepted that the appellant had provided a satisfactory explanation for his delay in commencing the proceedings and the Minister did not claim that he would suffer any prejudice if time was extended, her Honour observed at R[3] that the dispute between the parties related to the question whether the appellant’s substantive application had merit or, alternatively, lacked merit such that it had poor prospects of success and a hearing would be futile. Her Honour correctly recognised that the merits of the substantive application was one of the matters identified by Wilcox J in Hunter Valley as being relevant to the Court’s discretion whether or not to extend time.

35    It is appropriate to make some general observations concerning the list of matters identified by Wilcox J and, in particular, that which relates to an assessment of the merits of the substantive application.

36    First, it is important not to lose sight of the fact that the matters are not exhaustive. They were intended to provide only general guidance in the exercise of the relevant discretion. As French J (as his Honour then was) pointed out in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 97 in respect of the matters or criteria identified by Wilcox J:

His Honour did not purport to set out an exhaustive list of the criteria to be considered in an application for an extension of time. Nor should the propositions contained in the judgment be elevated into rules of law fettering the discretion. They identify factors relevant to the exercise of the power and approaches to their consideration. In each case the discretion must be exercised with regard to all the circumstances.

37    Secondly, it is equally important in my view not to lose sight of the fact that, while the merits of a substantive application are a relevant matter, the assessment of those merits arises in the context of an interlocutory application. Appropriate caution is required in assessing the merits of a substantive application at that stage of the proceeding. I respectfully agree with the following additional observations of French J in Seiler at 98 on that issue:

… The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the decision to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it…

38    More recently, in ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111], Katzmann J adopted a similar approach when her Honour said:

Taking these matters in order, the first point to make is that when Wilcox J in Hunter Valley Developments referred to the merits he cited Lucic v Nolan (1982) 45 ALR 411 (“Lucic”) at 417 and Chapman v Reilly, unreported, Federal Court of Australia, 9 December 1983 at 6, where Neaves J also referred to Lucic. What those cases make clear is that it is inappropriate for this purpose to fully investigate the merits, although an obvious strength or weakness in the applicant's case is a factor for or against the exercise of the discretion. It seems to me that the proper approach is that which French J (as his Honour then was) described in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 [her Honour then set out the same passage from Seiler as is set out in [37] above].

39    Pagone J also refers to the decision of Besanko J in Hamden v Secretary, Department of Human Services [2013] FCA 3. In my view, it is particularly important to note what Besanko J had to say in [40] about the need for caution at the interlocutory stage of proceedings in assessing the relevance of the merits of the substantive application:

As far as the merits of the substantive application are concerned, it is not for the Court to determine the application at this stage. However, an extension of time should not be granted if the substantive application is not reasonably arguable. Furthermore, if the prospects of success of a substantive application are plainly strong or plainly weak, then that may be a relevant consideration depending on the nature of the other factors (for example, the period of the delay and the explanation for it) relevant to the application for an extension of time.

40    As the learned primary judge noted, the appellant’s application for an extension of time turned solely on the issue of the merits of his application. There was no dispute that he had provided an adequate explanation for the delay and the Minister did not raise any argument of prejudice. Her Honour identified the sole dispute between the parties as relating to the question whether the appellant’s substantive application “has merit, or alternatively, lacks merit such that it has poor prospects of success and a hearing would, accordingly, be futile”.

41    The sole ground of appeal set out in the notice of appeal is that the primary judge “made findings of fact on important issues that are not supported by the evidence. In his outline of written submissions in the appeal, the appellant clarifies that his appeal raises for determination whether there was any factual basis for the primary judge’s finding that the Minister had had regard to the appellant’s 12 May 2012 materials. The appellant also raises as an issue in the appeal the question of the proper standard to apply in assessing the merits of the proposed substantive application for judicial review at this interlocutory stage. The Minister raises no objection that the appellant’s case as presented in his written submissions went beyond the notice of appeal. For completeness, it might also be noted that, by consent, the appeal was conducted on the basis of the papers and without any oral hearing.

Consideration

42    In my view, the primary judge erred in refusing an extension of time in this matter. In particular, I consider that, with great respect, it seems that her Honour approached the application as though it raised for final determination the appellant’s proposed substantive application. Her Honour appears not to have heeded the need for caution as emphasised in the authorities referred to above or, if she did, her Honour misapplied the relevant principles.

43    In my opinion, the error is evident in both R[28] and [30]. In the former paragraph, her Honour concluded that, “on the material before the Court I am not persuaded that, in making his decision, the Minister failed to take into account the volume of material provided by Mr Mentink in support of his complaint to the Minister concerning ACLEI”. Her Honour then found that it was “clear” from the Minister’s letter of 2 May 2012 to Senator Mason that, in reaching his decision to take Mr Mentink’s complaints no further, the Minister was aware, and fully informed, of the following matters:

    the background to Mr Mentink’s complaints to and against the AFP, the Commonwealth Ombudsman and ACLEI;

    the specific nature of Mr Mentink’s complaints;

    the reasons that Mr Mentink had taken issue of processes within the ACLEI concerning the investigation of his complaints, and the manner in which the ACLEI had reconsidered its approach to the investigation;

    the manner in which the ACLEI subsequently undertook the investigation of Mr Mentink’s complaints; and

    the reasons for the decisions of the AFP, Commonwealth Ombudsman and ACLEI to investigate Mr Mentink’s complaints no further.

44    There are two comments to make about that finding. First, having regard to the nature of the application before the Court and the stage of the proceedings, in my view it was premature to determine the appellant’s claim that the Minister had not taken into account the material which was set out in the appellant’s letter dated 12 May 2012 and its attached “interim analysis”. In my view, the relevant question was whether or not on the basis of the material then before the Court the appellant had an arguable case that the Minister had failed to take into account that material. The Minister did not dispute the appellant’s claim that the Minister was bound to consider all the material provided to him by the appellant in support of his application for the appointment of a special investigator. Whether or not a decision-maker has taken into account material which he or she is bound to consider is a question of fact (see Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 599, (2011) 180 LGERA 99 at [47]). It is equally well established that, where a decision-maker has provided reasons for a decision and the decision-maker is obliged to have regard to mandatory criteria (or, in some cases, a submission or representation), the relevant question is whether or not there has been an active intellectual engagement with the mandatory criteria (or the submission or representation) (see, for example, Tickner v Chapman (1995) 57 FCR 451 at [39]; Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at [47] and, see generally, Minister for Immigration and Citizenship v Khadji (2010) 190 FCR 248 at [63]-[66]). Neither of the Minister’s letters dated 2 May 2012 and 6 July 2012 made any reference at all to that aspect of the appellant’s complaint which concerned Mr Sellars’ apparent conflict of interest (see generally Bat Advocacy at [44]-[48] and MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [19] per Flick and Jagot JJ). Nor is there any indication in any of the internal material obtained by the appellant under the FOI Act and put in evidence by him that that complaint was ever addressed by the ACLEI. As noted above, that issue figured prominently in the appellant’s complaint to the Minister concerning the alleged mishandling of his complaints by the ACLEI. Whatever view is taken as to whether the evidence as it then stood supported the appellant’s claim that the Minister had not considered all the material provided to him by the appellant, there is nothing in the evidence below to suggest that this particular aspect of the appellant’s case was the subject of any active intellectual engagement by the Minister.

45    As noted above, the issue whether the Minister considered all of the appellant’s material is a question of fact. Ultimately that question will turn on what evidence is adduced. While it is premature to resolve that question now, for reasons given above I consider that the appellant has demonstrated that he has an arguable case on this matter. Further relevant evidence may be adduced as a result of interlocutory processes in the proceeding, such as discovery.

46    Some allowance needs to be made for the fact that the Minister’s reasons for rejecting the appellant’s request that a special investigator be appointed are set out in only a relatively brief form in the Minister’s letter dated 2 May 2012 to Senator Mason and even more briefly in the Minister’s letter dated 6 July 2012 to the appellant. Moreover, it is incontrovertible that reasons are not to be read over-zealously and with an eye keenly attuned to discerning error. But even after making those allowances, I consider that the appellant has at least an arguable case in respect of his contention that the Minister had failed to consider all the material which the appellant had provided to him.

47    Secondly, I consider that the primary judge’s erroneous approach is also reflected in R[30], where her Honour said that she was not persuaded that the material apparently obtained by the appellant by way of the FOI “demonstrates” that the Minister did not have regard to the appellant’s material in reaching the relevant decision. In my opinion, the relevant question was not whether that material “demonstrated” that matter. Rather, the correct question was whether the appellant’s argument that the Minister had failed to take into account his material was reasonably arguable. As the learned primary judge observed in R[30], it was not possible for the Court, on the state of the evidence in support of the interlocutory application, to reach a properly informed view of the material obtained by the appellant under the FOI Act which he then used in support of his request the Minister exercise his power under s 156 of the LEIC Act to appoint a special investigator. Her Honour observed that one inference which might be drawn from that material is that a significant number of independent investigative officers, across numerous agencies, were aware of and engaged in extensive investigative processes to determine whether there was any substance in the appellant’s complaints of corruption in the AFP. That inference might well be drawn but, even if it were, that would not render this aspect of the appellant’s case hopeless or bound to fail. That is particularly so where there was no evidence before the Court below which indicated that either the ACLEI or the Minister had addressed the appellant’s complaint concerning Mr Sellars’ role. Indeed, such evidence as there was pointed in the opposite direction.

48    Likewise, I respectfully cannot agree with her Honour’s finding that the FOI Act material indicated that there were “concerns in ACLEI as to possible conflicts of interest in ACLEI officers in relation to the ACLEI investigation”, which were “apparently addressed within that agency and that such material was also available to the Minister”. The material referred to above, particularly the ACLEI’s response document which was apparently used in preparing a draft of the Minister’s letter dated 2 May 2012 to Senator Mason, contained nothing of substance in response to the appellant’s complaint that Mr Sellars had a serious conflict of interest. Nor indeed did either of the Minister’s letters dated 2 May 2012 or 6 July 2012 make any reference at all to that particular complaint.

49    For the reasons I have given above, I consider that the appellant has a reasonably arguable case that the Minister failed to take into account all the relevant material set out in the appellant’s letter of complaint dated 12 May 2012 and its attachment. In particular, the material annexed to the appellant’s affidavit in support of his application for an extension of time indicated that the appellant could point to material which suggested that Mr Sellars had a serious conflict of interest. This was an important part of the appellant’s contention that his complaint to the ACLEI had been seriously mishandled. It may well be, of course, that there is some acceptable explanation as to why Mr Sellars was involved not only in determining the appellant’s initial complaint to the Ombudsman in 2004, but also in 2010 when he participated in the ACLEI’s investigation of the appellant’s subsequent complaints (which included a complaint about the Ombudsman’s earlier investigation). But any such explanation was not apparent in any of the material before the primary judge at the interlocutory stage.

50    The primary judge also considered and rejected the appellant’s alternative ground of review, namely that the Minister had regard to an irrelevant consideration because he took into account the outcome of the ACLEI’s investigation rather than focusing on the manner in which the investigation had been handled, which was how the appellant described the matter in his letter dated 12 May 2012. Her Honour found that the Minister clearly did have regard to the manner in which ACLEI conducted the investigation, as is apparent from the reference in the Minister’s letter of 2 May 2012 to the ACLEI’s “reconsideration” of the investigation. Her Honour found that the appellant’s real complaint was that the ACLEI had decided to take the investigation no further because a decision the other way would not have been a matter of concern to the appellant. Accordingly, her Honour found that the proposed irrelevant consideration ground of review lacked any merit.

51    With great respect, I consider that this finding reflects the same error as affected the appellant’s other proposed ground of judicial review, which relates to whether relevant material had not been taken into account. Her Honour seems to have approached the matter on the basis that the application for an extension of time required a determination of the merits of the appellant’s case as though it were a final hearing. It remains to be seen, of course, whether or not the appellant can establish the alleged irrelevant consideration ground. But in my view, the proposed ground should not have been dismissed as totally without merit at the interlocutory stage, not the least because the appellant’s material in support of his application for an extension of time indicated that he had an arguable case that the Minister had failed to grapple at any level with the appellant’s complaint that Mr Sellars’ alleged conflict of interest caused the ACLEI’s investigation to miscarry. It is at least arguable that this seemingly serious omission suggests that the Minister did in fact focus on the outcome of the ACLEI’s investigation and not on the particular matters raised by the appellant which were directed to the ACLEI’s handling of his complaints.

52    In my view, the Full Court is in as good a position as the primary judge to determine whether or not time should be extended under s 11(1)(c) of the ADJR Act to enable the appellant to bring his judicial review application. For the reasons given above, I consider that this is an appropriate case to extend time.

53    The appellant did not seek costs, nor would it be appropriate to do so in an application to extend time. I believe that the appropriate orders are:

(a)    The appeal be allowed.

(b)    The orders made by the primary judge on 12 February 2013 be set aside.

(c)    Time be extended under s 11(1)(c) of the ADJR Act to enable the appellant to file and serve the originating application for judicial review relied on below.

(d)    There be no order as to costs.

Associate:

Dated:    21 October 2013

REASONS FOR JUDGMENT

PAGONE J:

54    This is an appeal by Mr Mentink from a decision made on 12 February 2013 refusing his application for an extension of time to bring an application under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). The respondent, the Minister, had made a decision on 6 July 2012 under s 156 (2)(c) of the Law Enforcement Integrity Commission Act 2006 (Cth) to take no further action in relation to a request to investigate a claim of corruption in relation to matters which Mr Mentink had raised with the Australian Commission for Law Enforcement Integrity (“the ACLEI”). The Minister’s decision was made 6 July 2012 but Mr Mentink did not seek to review that decision until after the time period prescribed by s 11(3) of the ADJR Act had passed. Mr Mentink has since applied to the Court to extend the time under s 11(3)(c) within which to make his application to review the Minister’s decision.

55    Section 11(3)(c) of the ADJR Act permits the Court to extend the time within which to make an application. The judicial discretion conferred by that section permits the Court to have regard to the strengths of the case sought to be reviewed as an important factor in deciding whether to grant the application to extend the time in which to make the substantive application. In Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344 (“Hunter Valley”) Wilcox J said at 348:

“Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so. The “prescribed period” of 28 days is not to be ignored. Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show “an acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time.”

(Citations omitted)

The merits of the substantial application were considered by his Honour in Hunter Valley at 349 to be properly to be taken into account in considering whether an extension of time should be granted: see also Hamden v Secretary, Department of Human Services [2013] FCA 3 [36]-[40]; Windshuttle v Deputy Federal Commissioner of Taxation [1993] 93 ATC 4992 (“Windshuttle”) at 4999 and Brown v Federal Commissioner of Taxation [1999] 99 ATC 4516 (“Brown”) at 4518 [7].

56    The Minister’s case against Mr Mentink’s application for an extension of time was conducted at first instance, and on appeal, on the basis that the substantive application lacked sufficient merit for the Court, in the words of Wilcox J, to be “positively satisfied that it [was] proper” to grant the extension. Mr Mentink offered an explanation for his delay in lodging the substantive application which the Minister accepts to be a satisfactory explanation. The Minister also accepted that he would not suffer any prejudice if Mr Mentink was granted an extension of time in which to make the substantive application. The Minister contends, however, and Collier J accepted at first instance, that the substantive application lacked sufficient merit to warrant granting an extension.

57    Assessing the merits of a substantive application in the context of an interlocutory application must be undertaken with caution: Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98; ActewAGL Distribution v The Australian Energy Regulator (2011) 195 FCR 142 at 167. The approach taken in such an assessment is to treat the facts asserted as being true without their true existence being explored. In Windshuttle, von Doussa J said at 4999 in a passage adopted by the Full Court in Brown at [7]:

“It is sufficient…to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends. In other words the assertions can, if the parties so choose, be treated as pleadings are treated where an application is made to strike out an action on the ground that the pleadings disclose no cause of action. On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence. That is left for the trial if there is an arguable case on the pleadings.”

That in my view is what her Honour did when considering the merits of the substantive application in the context of the interlocutory application for an extension of time.

58    Mr Mentink’s complaint about the Minister’s decision was that the Minister had taken into account irrelevant considerations and had failed to take into account relevant considerations in deciding to take no further action in relation to the corruption issues which Mr Mentink had raised. The grounds of Mr Mentink’s substantive application against the Minister were:

“1. The Respondent made a decision that was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, taking an irrelevant consideration into account in the exercise of a power, and thus

2. failed to act according to S 156(2)(B) of the Law Enforcement Integrity Commissioner Act (2006) by failing to take relevant considerations into account, namely the evidence provided by the Applicant.”

The substantive application does not make clear precisely which irrelevant consideration was said to have been taken into account by the Minister nor does it provide any specificity about the particular evidence that he had provided which the Minister ought specifically to have taken into account. However, as appears from her Honour’s reasons for decision, the irrelevant consideration relied upon by Mr Mentink was the decision and reasons for decision of the ACLEI and the matter which Mr Mentink maintained the Minister had failed to take into account was the totality of the material provided by him to the Minister as annexed at pages 12-30 to his affidavit filed 14 January 2013. Neither ground supports the substantive application: it was not irrelevant for the Minister to have regard to the decision and reasons of the ACLEI when considering Mr Mentink’s complaint about the manner in which investigations were conducted, and the evidence relied upon by Mr Mentink indicated that the Minister had regard to all the material Mr Mentink had put to the Minister for his consideration; at very least it did not disclose on what Mr Mentink relied upon that the Minister did not have regard to all the material Mr Mentink had put to the Minister for his consideration.

59    Mr Mentink’s affidavit in support of his substantive application was considered by her Honour together with the submissions made at a hearing but her Honour concluded that his prospects of success would be poor and gave four reasons for that conclusion. Mr Mentink challenges each of those reasons on various grounds in this appeal. Each of the reasons given by her Honour was an explanation of her Honour’s conclusion that the substantive application which Mr Mentink sought to make did not have sufficient merit to satisfy her Honour that it was proper for the extension of time to be granted. Each of the reasons given by her Honour addressed specific matters raised by Mr Mentink in his application and submissions. None of Mr Mentink’s submissions on appeal advances his case any further. In my view, no error of law had been shown by the Minister or by her Honour.

60    On 12 May 2012 Mr Mentink wrote to the Minister raising allegations of corrupt conduct by the ACLEI and expressed the hope that the Minister would appoint a special person to conduct an investigation. The Minister considered the material and responded by letter dated 6 July 2012 advising Mr Mentink that he would take no further action on the matter. The Minister’s letter explained that decision to be consistent with an earlier response he had provided to Senator Mason and that it was based on a number of factors including such factors as “the previous investigations by the Australian Federal Police and Commonwealth Ombudsman, as well as jurisdictional issues in relation to international elements”.

61    The first reason her Honour gave for concluding that Mr Mentink’s substantive application did not warrant the extension of time he sought was that Mr Mentink was not entitled to more detailed reasons from the Minister. Her Honour’s conclusion was based in part upon her acceptance of submissions made on behalf of the Minister that a request for reasons would in part be exempt under Schedule 2 of the ADJR Act. Section 13 exempts from the obligation to provide reasons those decisions found in Schedule 2 which include:

decisions under the Law Enforcement Integrity Commission Act 2006 being:

i.    decisions in connection with a corruption investigation (within the meaning of that Act); or

ii.    decisions in connection with a public enquiry (within the meaning of that Act).

There can be no error in the conclusion that some part of the reasons sought by Mr Mentink would come within the terms of the exemption provided by Schedule 2. The Minister had otherwise provided reasons for his decision.

62    Mr Mentink’s submission on appeal was that her Honour’s first reason was “completely irrelevant” because he had made no claim to more detailed reasons from the Minister but “really wished to ascertain the information/reasons upon which the decision was stated to be based, and [had] delayed the application until he received the 2 May 2012 letter to Senator Mason”. Mr Mentink may not have been seeking further reasons for the decision but the first of the reasons given by her Honour leading to the conclusion she had reached was that the reasons he had received were all he was entitled to receive adequate. On 27 March 2012 Senator Mason had written to the Minister seeking assistance for Mr Mentink in respect of his allegations that the Australian Federal Police may have acted inappropriately in relation to an investigation involving him. On 2 May 2012 the Minister wrote to Senator Mason dealing with Mr Mentink’s concerns in relation to the conduct of the Australian Federal Police, the Commonwealth Ombudsman and the ACLEI. It is plain from the Minister’s letter to Senator Mason that the Minister had investigated the matter and was satisfied that no further investigation was justified. The Minister’s subsequent response to Mr Mentink on 6 July 2012 stated in terms that he had taken into account his previous response to Senator Mason and the previous conclusions, and (necessarily implied), the basis for the previous conclusions. The fact that no further reasons were sought, or need not be provided if sought, effectively confined the relevant facts for inquiry in the interlocutory application to those before her Honour.

63    The second reason given by her Honour was that her Honour was in any event “not persuaded that, in making his decision, the Minister failed to take into account the volume of material provided by Mr Mentink in support of his complaint”. Mr Mentink’s complaint about this ground has no foundation beyond conjecture. Mr Mentink submitted, for example:

“No documents were disclosed under FOI in the date range 12 May to 6 July 2012. The appellant submits that this proves that the people who drafted the 6 July 2012 decision letter did not deliberate on the appellant’s 15 -age analysis which contained many exerpts from the ACLEI documents; and that ACLEI was not asked to respond to the allegations. The initial statement of information/reasons of 2 May 2012 obviously could not have taken into account the allegations made and the evidence provided by the appellant on 12 May 2012.”

The submission made by Mr Mentink is that matters he had put in an analysis on 12 May 2012 could not have been taken into account by the Minister when providing reasons to Senator Mason on 2 May 2012 and that those drafting the Minister’s letter of 6 July 2012 could not have taken into account documents disclosed under the Freedom of Information Act 1982 (Cth) (“the FOI Act”) during the period 20 May to 6 July 2012. However, it was on 12 May 2012 that Mr. Mentink wrote to the Minister with his request and it was on the same day that Mr Mentink wrote to the Minister with his 15 page analysis. The Minister’s subsequent letter of 6 July 2012 expressly refers to the letter from Mr Mentink of 12 May 2012 which had raised his allegations. The Minister’s letter referred to the allegations which had been made in Mr Mentink’s letter and described them as “similar” to the ones which the Minister had received from Senator Mason on 18 March 2012 on Mr Mentink’s behalf. The Minister’s response to Mr Mentink was described as being “consistent” with his earlier response but was plainly reached upon Mr Mentink’s material and request of 12 May 2012. Her Honour’s conclusion was based upon the view from the material relied upon by Mr Mentink, and not upon an inquiry into the true existence of the facts, that the Minister when making the decision communicated by letter dated 6 July 2012 “ was fully aware, and fully informed, of the totality of the issues raised by Mr Mentink by his correspondence on 12 May 2012”. I would not conclude otherwise in this appeal.

64    Her Honour’s third reason was of not being persuaded that the material apparently obtained by Mr Mentink by way of freedom of information request had demonstrated that the Minister did not have regard to his material in reaching the relevant decision. Her Honour observed in that connection that the state of the material did not make it possible for the Court to reach a properly informed view of the material disclosed pursuant to the FOI Act. Mr Mentink’s submission in respect of this reason was ultimately that her Honour’s third reason was “completely irrelevant”, however, her Honour was responding to Mr Mentink’s submission which was, in effect, repeated on appeal. The point in each instance being that Mr Mentink had not relied upon anything to show that what had been obtained by Mr Mentink by way of the freedom of information request had not been taken into account by the Minister in reaching his decision upon the material which Mr Mentink had provided.

65    Her Honour’s fourth reason for deciding against Mr Mentink’s application was a rejection of his submission that the Minister had regard to an irrelevant consideration by taking into account the decision of the ACLEI as distinct from the manner in which it had handled the relevant investigation. Mr Mentink’s complaint on appeal is that her Honour was wrong to take into account the fact that the Minister, in turn, had taken into account the decision and reasons of the ACLEI. However enquiry into the way in which a matter is handled by the ACLEI does permit consideration of the decision and its reasons. Mr Mentink’s letter to the Minister of 12 May 2012 had expressed concern about the ACLEI’s decision not to continue its investigation. That decision, the reasons for that decision, and the reconsideration of the decision, were all matters which were relevant for the Minister to take into account in considering Mr. Mentink’s request about the manner in which his concerns had been investigated.

66    For the reasons given by her Honour I would agree that the case by Mr Mentink is not sufficient to satisfy the Court that it is proper for his application to extend the time for review to be granted.

Associate:

Dated:    21 October 2013