FEDERAL COURT OF AUSTRALIA

Duncan v Administrative Appeals Tribunal (No 2) [2004] FCA 1258

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – jurisdiction – application for judicial review of AAT decision dismissing application for review of refusal of documents under Freedom of Information Act  - application to AAT dismissed as frivolous and vexatious – order made requiring leave for further applications in respect of the same matter – application for judicial review of AAT decision – preliminary issue – jurisdiction of AAT – condition of jurisdiction – request for internal review of agency decision – no prior request made – no relevant internal review decision – AAT lacking jurisdiction – application for review of AAT decision denied – vexatious applicant direction set aside

Freedom of Information Act 1982 (Cth) s 54(1), s 55

Re Wilson and Australian Federal Police (1983) 5 ALD 343 cited

IAN DUNCAN v ADMINISTRATIVE APPEALS TRIBUNAL and SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

No W161 of 2004

FRENCH J

28 SEPTEMBER 2004

PERTH

THE COURT ORDERS THAT:

1.         The direction made by the Administrative Appeals Tribunal (the Tribunal) on 17 April 2001, pursuant to s 42B(1)(b) that the applicant must not without leave of the Tribunal make a subsequent application to the Tribunal in relation to the application then before the Tribunal, be set aside.

2.         The application is otherwise dismissed on the basis that the Tribunal lacked jurisdiction to entertain the application for review.

3.         Each party is to bear its own costs of these proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     Ian Laurence Duncan sought review in the Administrative Appeals Tribunal (the Tribunal) of what he claimed were decisions refusing him access to documents which he had requested from the Department of Family and Community Services under the Freedom of Information Act 1982 (Cth) (FOI Act).  There were two distinct requests.  He did not persist with his application in the Tribunal in respect of the first of those requests.  His application in respect of the second, was dismissed.  An order was also made by the Tribunal that he not be permitted to make any further applications to it in respect of that matter other than by leave.  Mr Duncan sought judicial review of the Tribunal’s decision.  After a somewhat convoluted procedural path, the matter came on for hearing in this Court.  A preliminary issue as to the jurisdiction of the Tribunal was raised by the Second Respondent.  It is now apparent that the Tribunal did not have jurisdiction to entertain Mr Duncan’s application as he had made no request for internal review of the alleged refusal by the Department to provide certain documents to him.  A request for internal review and an adverse decision is a necessary condition for Tribunal review of a refusal of access to documents under the FOI Act. 

2                     Mr Duncan now concedes that the Tribunal lacked jurisdiction but contends that the order that he only be permitted to file applications by leave should be set aside.  For the reasons that follow, the application for judicial review of the Tribunal decision is dismissed, save that the order made by the Tribunal in relation to Mr Duncan will be set aside.  As the jurisdictional point was not taken before the Tribunal, I do not propose to order any costs against Mr Duncan in this case.

Factual and Procedural History

3                     Ian Laurence Duncan has had a long-standing dispute with the Department of Family and Community Services. In 2000, he had endeavoured to obtain documents from the Department under the FOI Act.  He was not satisfied that he had received all the documents requested.  On 4 June 2000, he wrote to the Minister for Family and Community Services.  On 28 September 2000, Ms King, the Manager of the ‘Ministerial Liaison Team’ in Centrelink, wrote to Mr Duncan acknowledging and apologising for an incorrect statement in a letter sent to him earlier on 26 May 2000 that his Freedom of Information request had been dealt with.  The Ministerial Liaison Team Manager said she had been advised that documents and files held in the National Support Office had been forwarded to Mr Duncan, save for those exempted under the FOI Act.  Her letter concluded:

‘In relation to the other matters you raised in your correspondence on 4 June 2000, these have been addressed in previous correspondence to you and it would not serve any useful purpose to have these matters revisited.’

4                     Mr Duncan then wrote to the Freedom of Information Officer at Centrelink on 10 January 2001 in the following terms:

This request is made in accordance with the Freedom of Information Act 1982.

REQUEST 1.

I refer to the attached correspondence from Centrelink dated 28 September 2000.

Please provide me with a copy of the ‘previous correspondence’ referred to.  It seems not to have been provided in response to previous requests.

REQUEST 2.

Also, please provide me with a copy of all files, documents, or other information, held at any location that contain any reference whatsoever to me, that have not previously been forwarded to me. (Apart from documents already identified by Centrelink in relation to previous requests.)

I request that the application fee is waived.  Copy of Health Care Card enclosed.’

5                     On 11 January 2001, Ms E Greif replied to Mr Duncan.  In respect of Request 1 she said that ‘the previous correspondence’ which he sought was already included in correspondence supplied to him under the FOI Act(FOI Ref No 052903).  With respect to Request 2, she said:

‘In regard to your point number 2., I have been in touch with the staff at the Ministerial Liaison Team in National Support Office and have requested that all correspondence held by them, subsequent to your previous FOI requests, be forwarded to me.  It may take some time for these documents to arrive and I will forward them to you when I have had time to determine if there are any exemptions or not.’

She asked Mr Duncan to confirm that he was not interested in getting copies of files which had been created to process his FOI requests, files created by the Advocacy and Administrative Law Section to deal with his appeals to the Tribunal, electronic computer documents or Benefit files held by Centrelink.  She also asked him to advise if he believed that there were documents held at any other location in Centrelink.  Ms Greif said:

‘In summary, I will be sending you copies of National Support Office Ministerial Liaison Team documents when they arrive, and you will be contacting me regarding getting copies of the above mentioned files.’

6                     Mr Duncan wrote two letters in response to the letter from Ms Greif.  Both were dated 6 February 2001.  Those letters dealt separately with Requests 1 and 2.  The letter dealing with Request 1 was addressed to Mr Guthrie, an FOI Review Officer at Centrelink.   In that letter he indicated that he had been unable to locate the documents which Ms King had referred to on 28 September 2000 as being addressed in previous correspondence to him.  He asked Mr Guthrie to provide details of the authorship and dates of documents previously provided referred to by Ms King in her letter as addressing ‘... the other matters you raised in your correspondence on 4 June 2000’.  He said that if the documents had been received any FOI response should confirm that fact.  He said that, in the absence of any information identifying the documents referred to by Ms Greif, ‘... the simple fact is that I have been provided with no documents pursuant to this particular request’.  He then said:

‘Despite the fact that I have not been advised of my rights of review and appeal as required under s.26 of the FOI Act, I am entitled to apply for an internal review of Ms Greif’s decision on the grounds at s.54(1)(a) and/or (ba) of the Freedom of Information Act 1982’.’

7                     Mr Guthrie responded on 2 March 2001 to Mr Duncan’s letter of 6 February 2001 saying, inter alia:

‘... if you are still seeking documents which you believe have not been made available, I can only conclude that the documents do not exist now, or have never existed.  I have therefore decided to uphold Ms Greif’s refusal to grant you access to the documents that you seek.  Your request for these document (sic) is denied under Section 24A of the FOI Act.

This section provides that a request for a document can be refused if all reasonable steps have been taken to find the document, but it cannot be found or does not exist.’

There was therefore in respect of Request 1 at most a refusal and unsuccessful review.

8                     Mr Duncan’s second letter of 6 February 2001, which was addressed to Ms Greif, related only to Request 2.  He confirmed that he was not interested in obtaining copies of Benefit files.  He was however interested in obtaining documents or information on FOI files which related to his FOI requests apart from correspondence to and from the FOI officer and documents already forwarded under FOI.  He also asked for documentary information in relation to his Tribunal appeals and other matters that had been dealt with by the Advocacy and Administrative Law Section.  As to electronic computer documents, he asked that all such documents be forwarded to him.

9                     Mr Duncan set out in his letter of 6 February 2001 to Ms Greif a list of classes of documents which he believed had not been forwarded to him:

‘All ‘Electronic Computer documents’ previously withheld.

The response referred to in Ms Vardon’s correspondence to me of 1 May 2000.

Documents in relation to the decision to terminate me from Centrelink, and the timing of that decision.

Documents in relation to the decision not to grant an extension of time in which to respond to the ‘Notice of Termination’.

Documents in relation to Centrelink’s various statements regarding the application and interpretation of the ‘Deed of Agreement.’

Documents previously misrepresented as exempt under s.36(3) of the FOI Act for which no ‘certificate’ from the Minister or his delegate has been provided.’

He also referred to some other documents relating to advice received by Comcare.

10                  Ms Greif wrote back to Mr Duncan on 19 February 2001.  She noted his replies relating to particular categories of documents.  She enclosed some printouts of electronic documents.  She had photocopied FOI files for various FOI request numbers.  She said there were no separate Tribunal files and all documents created by the Advocacy and Administrative Law Section were attached to the relevant FOI file.  She referred to his allegation in the letter of 6 February 2001 that Centrelink had a history of proactively concealing documents.  She denied that allegation and said she had personally attempted to supply him with all documents Centrelink held on him.  She said she would not be addressing the listed documents.  If they existed they would already be amongst the documents she had sent to him.  She said ‘you may appeal this decision’.

11                  On 5 April 2001, Ms Greif wrote a further letter to Mr Duncan dealing exclusively with Request 2 contained in his letter of 10 January 2001.  She referred to her earlier letter of 11 January 2001.  She said:

‘In my letter to you dated 11 January 2001 I informed you that I would request from National Support Office all documents subsequent to your previous FOI requests.  I have received this information and it will be processed and sent to you soon.’

She then set out the FOI files, which she sent to Mr Duncan with her letter of 11 January 2001.  She identified three outstanding files which she had not yet sent to him, but which would be sent when they were finalised.  She concluded saying:

‘I have copied FOI file number 057830.  It contains 95 folios pertaining to FOI request, AAT papers and decision, please find enclosed.  (I have supplied you with the entire file again, although you have already received folio one – 41 in the past.)’

12                  Ms Greif also wrote to Mr Duncan on the following day, 6 April 2001.  She said that letter dealt with the aspect of his request of 10 January 2001 ‘... concerning files held in Centrelink’s National Support Office’.  She advised that he was granted full access to three bundles of documents which she identified. Photocopies were enclosed with her letter.  This, she said, brought him up to date with documents held in the National Support Office.

13                    On 17 April 2001, Mr Duncan lodged in the Tribunal an application for review of the departmental decisions which he identified simply in the following terms:

‘Letter from FOI Review Officer dated 2.3.01.’

He was then asked what were his reasons for seeking review of the decision.  The reasons were attached in two separate sheets.  The first sheet dealt with Request 1.  The second sheet dealt with Request 2.  In each case he identified the decision with respect to the Request by reference to Mr Guthrie’s letter of 2 March 2001 and the following two sentences which appeared in that letter:

‘Further it is my understanding that Centrelink WA or National Office has previously provided you with all documents requested.

Accordingly, if you are still seeking documents which you believe have not been made available, I can only conclude that the documents do not exist now, or have never existed.’

14                  As appears from the preceding factual history, the application seems to have been lodged on the misapprehension that Mr Guthrie was dealing, on review, with both Request 1 and Request 2.  The true position appears to be that the only decision reviewed was that related to Request 1.  Request 2 continued to be dealt with by Ms Greif who did advise Mr Duncan of the availability of review of her decision.  Review was not subsequently pursued.

15                  On 28 June 2001 Mr RD Fayle, a Senior Member of the Tribunal, dismissed Mr Duncan’s application pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that it was frivolous or vexatious.  Mr Fayle also directed, under s 42B(1)(b), that Mr Duncan ‘must not without leave of the Tribunal, make a subsequent application to the Tribunal in relation to this application’.  In the notes of his ex tempore reasons for judgment Mr Fayle said it had become apparent after discussion with Mr Duncan and the representative of the Department at a directions hearing before the Tribunal that there were no documents specified by Mr Duncan that could be identified by the Department.  He regarded Mr Duncan’s application as something of a ‘fishing expedition’ informed by a desire on Mr Duncan’s part to assert that information which had been disclosed to him in relevant documents could be exposed as flawed or without foundation.  Mr Fayle said:

‘It would not appear that the application is about any documents that actually exist or if they do exist, then on the basis of the request that they might be reasonably identified and are capable of being produced.’

16                  In August 2001, Mr Duncan filed an application in the Federal Magistrates Court under s 13(7) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) seeking further and better particulars of the Senior Member’s reasons for each of his directions.  That application was dismissed.  On 6 June 2002, Mr Duncan filed an application in the Federal Magistrates Court seeking review of what he described as ‘two decisions of the Administrative Appeals Tribunal’.  The two decisions referred to were the decision by Senior Member Fayle dismissing his application under s 42B(1)(a) of the AAT Act and the direction that he not be permitted to make any further application without leave.  That application, filed in the Federal Magistrates Court, was rejected by the Registrar. 

17                  On 24 June 2002, Mr Duncan filed in the Federal Magistrates Court an application to review the Registrar’s decision.  The hearing of the review application proceeded on 11 July 2002 before Phipps FM.  Judgment dismissing the review application was not delivered until 5 December 2003.  Mr Duncan appealed to the Federal Court against the decision of Phipps FM.  That appeal came on for hearing on 1 June 2004.  On 4 June 2004, the appeal was allowed, the decision of the Federal Magistrates Court dismissing Mr Duncan’s application to review the Registrar’s decision was set aside.  The Registrar was directed to accept the application for review of the decision of the Tribunal for filing.  On 8 July 2004, Mr Duncan’s application was filed in the Federal Magistrates Court.

18                  In my reasons for judgment on the appeal from the Federal Magistrates Court, I suggested that, once the filing had been effected, the parties should seek transfer of the proceedings from the Federal Magistrates Court to this Court.  This was because of my concerns about the delays in dealing with the matter.  On 9 July 2004, Walters FM made an order pursuant to s 39(1) of the Federal Magistrates Act 1999  (Cth) that Mr Duncan’s application be transferred to this Court.

19                  The matter came on for directions on 29 July 2004, at which time it was submitted for the second respondent that there was a preliminary issue as to the jurisdiction of the Tribunal to entertain Mr Duncan’s application in the first place.  I made directions in the following terms:

‘1.        The question whether the AAT’s decision to dismiss the applicant’s application to it was correct because the AAT lacked jurisdiction to entertain that application is to be heard and determined as a separate issue on the papers and on written submissions.

2.         The second respondent is to file and serve any written submissions together with any affidavit exhibiting any relevant part of the record before the AAT on or before 12 August 2004.

3.         The applicant is to file and serve written submissions in reply on or before 26 August 2004.’

20                  In substance the second respondent submits that as the reasons for decision of Senior Member Fayle made clear, Mr Duncan did not proceed with his Tribunal application in so far as it related to Request 1 which was deemed withdrawn.  Mr Duncan does not challenge that ruling.  Therefore the only request which was the subject of review to the Tribunal was Request 2.  That had never been the subject of a review request within the Department.  On that basis the AAT had no authority to entertain the application as its authority is conditioned upon the applicant previously having sought internal review within the relevant department or agency. 

Statutory Framework – The Freedom of Information Act 1982 (Cth)

21                  Section 54 of the FOI Act provides, inter alia:

‘(1)      Subject to subsection (1A), where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being:

(a)       a decision refusing to grant access to a document in accordance with a request; or

(b)       a decision granting access to a document but not granting, in accordance with the request, access to all  documents to which the request relates; or

(ba)     a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or

...

the applicant may, by application in writing to the agency accompanied by any application fee in respect of the application, request a review of the decision.’

There are time limits prescribed for seeking internal review under s 54(1A). 

22                  Section 55 sets out decisions in respect of which applications may be made to the Tribunal.  It provides, inter alia:

‘(1)      Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:

(a)       a decision refusing to grant access to a document in accordance with a request; or

(aa)     a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or

(ab)     a decision purporting to grant, in accordance with a request, access to all documents to which the request relates, but not actually granting that access; or

...

(2)       Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.’

The remaining subsections of s 55 are not material for present purposes.

The Second Respondent’s Contention

23                  It is submitted for the second respondent that the FOI Act limits the jurisdiction of the Tribunal by imposing, as a condition precedent to review by the Tribunal, the requirement that any applicant shall first have requested internal review of a refusal to grant access in accordance with s 54 of the FOI Act.  Reference was made to Re Wilson and Australian Federal Police (1983) 5 ALD 343 (at 349-350). 

24                  The second respondent points out that on the evidence now before the Court the only occasion on which Mr Duncan sought internal review pursuant to s 54 was by his letter to Mr Guthrie dated 6 February 2001.  That letter was limited in form and substance to the subject matter identified as Request 1.  It did not in terms seek review of Ms Greif’s response but sought Mr Guthrie’s assistance in identifying what documents had been provided.  Mr Duncan did not proceed with his Tribunal application in so far as it related to Request 1, which was treated as withdrawn.   That ruling was not challenged.

25                  It is submitted for the second respondent that the initial response to Request 2 from Ms Greif was not a decision refusing to grant access but rather an indication of her intentions.  The first occasion upon which a decision refusing access might be said to have been made was in Ms Greif’s letter of 19 February 2001.  Mr Duncan’s request for internal review post dated that later letter but made no reference to it.  Then on 5 April 2001, more than a month after Mr Guthrie’s letter of 2 March 2001, another letter from Ms Greif underlined the ongoing nature of her decision-making in respect of Mr Duncan’s request for documents under Request 2.

26                  It is submitted for the second respondent that no request for internal review in relation to Request 2 was made nor could one have been made prior to 19 February 2001.  To the extent that Mr Guthrie dealt with correspondence between Mr Duncan and Ms Greif concerning Request 2, he did so without a request for review which is a necessary pre-requisite for an application to the Tribunal. 

27                  On this basis it is submitted for the second respondent that Mr Duncan was not entitled to make his Tribunal application in respect of Request 2 and the application should be dismissed for want of jurisdiction.  It is submitted for the second respondent that as a result:

1.         The application to set aside Senior Member Fayle’s order dismissing the Tribunal application should be dismissed summarily.

2.         The direction pursuant to s 42B(1)(b) should be set aside as the Tribunal had no jurisdiction in the matter.

3.         Mr Duncan should pay the second respondent’s costs.

28                  Mr Duncan responded to the submissions by the second respondent with his own written submissions filed on 26 August 2004. 

29                  In respect of Request 1 he acknowledged that the application for Tribunal review of the decision in respect of Request 1 was formally withdrawn.  He added some additional comment ‘in clarification of that matter’.  As the application in respect of Request 1 had been withdrawn, it is not necessary, for present purposes, to refer to his clarifying comments.

30                  As to Request 2, Mr Duncan accepted that he had misinterpreted Mr Guthrie’s references to Ms Greif’s letter of 19 February 2001 as an overall response to a purported review of the request for outstanding documents.  He acknowledged that although purporting to be a review of the FOI officer’s decision about the application of s 24A, it was not actually a decision for the purposes of s 54 as there was no identifiable ‘request’ for it. 

31                  Mr Duncan took the view in his submission that neither Ms Greif nor Mr Guthrie had any delegation in accordance with s 23(1) of the FOI Act to make any decision for Centrelink under s 24A.  He appears to have relied for this proposition upon material appearing in par 5 of an affidavit filed in matter W256 of 2003 on 24 May 2004.  In any event, he contends that Mr Guthrie had no delegation to make any decision under s 24A of the FOI Act and that there was no decision under s 54(2) that could be reviewed by the Tribunal in accordance with s 55.  On that basis he took the view that the Tribunal had no jurisdiction to make the directions under s 42B(1)(a) and s 42B(1)(b) of the AAT Act.  He agreed that the directions should be set aside. Mr Duncan said in his submission:

‘The applicant agrees with the orders sought by the respondent as the most expeditious way of disposing of the oppressive direction under s.42B(1)(b) which the respondent has successfully used to oppose any review whatsoever of Centrelink’s actions in relation to FOI requests.  In particular, Centrelink has consistently opposed the applicant’s submissions that no lawful direction under s.42B(1)(b) existed since there was no request by a party.’ 

Conclusion on the Question of Relief

32                  It is apparent that the application for judicial review in respect of the Tribunal decision relates only to Request 2.  It is also common ground now that the Tribunal did not have the authority to entertain an application for review of Ms Greif’s ‘decision’ in respect of Request 2.  That is because the applicant had not requested review of that decision pursuant to s 54 of the FOI Act.  On that basis I am satisfied that the Tribunal did not have authority to entertain the application which was made by Mr Duncan and that the first two orders sought by the second respondent are appropriate.

Costs

33                  It does not seem that the jurisdictional point was taken before the Tribunal.  Had that point been taken it may well have been that Mr Duncan would have conceded it, as he has in these proceedings.  In the circumstances, each party will have to bear its own costs.

34                  The orders therefore will be as follows:

1.         The direction made by the Administrative Appeals Tribunal (the Tribunal) on 17 April 2001, pursuant to s 42B(1)(b) that the applicant must not without leave of the Tribunal make a subsequent application to the Tribunal in relation to the application then before the Tribunal, be set aside.

2.         The application is otherwise dismissed on the basis that the Tribunal lacked jurisdiction to entertain the application for review.

3.         Each party is to bear its own costs of these proceedings.

Associate:

Dated:              28 September 2004