FEDERAL COURT OF AUSTRALIA

Luck v University of Southern Queensland [2008] FCA 1582

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 42A, 44

Freedom of Information Act 1982 (Cth) ss 55, 56

Federal Court of Australia Act 1976 (Cth) s 31A

University of Southern Queensland Act 1998 (Qld)

Shi v Migration Agents Registration Authority (2008) 248 ALR 390 cited

TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 cited

Boston Commercial Services Pty Ltd (ACN 114 658 070) v GE Capital Finance Australasia Pty Ltd (ACN 070 396 020) (2006) 236 ALR 720 referred to

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 cited

GAYE LUCK v UNIVERSITY OF SOUTHERN QUEENSLAND

VID 476 of 2008

TRACEY J

22 OCTOBER 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appellant’s application for an adjournment of the hearing of the proceeding be refused.

2.                  The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     There is before the Court what purports to be an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).  It seeks to appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 29 May 2008.  On that day the Tribunal determined that it did not have jurisdiction to deal with an application lodged with the AAT by Ms Gaye Luck.  It, therefore, dismissed the application under s 42A(4) of the AAT Act.

2                     In her amended application to the Tribunal Ms Luck sought to appeal from the deemed refusal of a request, made by her to the University of Southern Queensland (“the USQ”) on 17 August 2006, for access to certain documents.  The request was made under the Freedom of Information Act 1982 (Cth) (“the FOI Act”).  The USQ did not respond to the request and Ms Luck contended that the USQ was deemed, by s 56(1) of the FOI Act, to have refused her application.  This meant, so she submitted, that she had the right to apply to the Tribunal for review of the decision: see s 55(1)(a) of the FOI Act; s 25(1) of the AAT Act.

3                     The Tribunal only gave short reasons for its decision that it lacked jurisdiction.  Those reasons do not refer to ss 55 or 56 of the FOI Act.  They appear to suggest that the Tribunal found that it lacked jurisdiction because the USQ was not established under a Commonwealth enactment and that, accordingly, the USQ’s deemed refusal was not made under such an enactment.  It followed, so the reasons suggest, that the Tribunal was not given jurisdiction under s 25 of the AAT Act.

4                     By notice of motion dated 28 July 2008, the USQ moved the Court for an order that the appeal be dismissed summarily pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”) on the ground that the applicant had no reasonable prospect of prosecuting successfully the appeal and that any appeal would be hopeless and bound to fail.  The notice of motion was returnable on 1 August 2008 which had been fixed as the day of the first directions hearing for the proceeding.  Ms Luck did not appear on that day.  The directions hearing was adjourned to 5 September 2008 and the respondent’s notice of motion was also adjourned to the same date.  In the intervening weeks attempts were made to obtain the services of pro bono counsel to advise Ms Luck.  For reasons which it is unnecessary to record, these attempts were not successful.

5                     On 5 September 2008 Ms Luck attended the adjourned directions hearing.  On that occasion directions were given requiring Ms Luck to file and serve any written submissions in opposition to the USQ’s notice of motion.  Those submissions were to be filed and served on or before 3 October 2008.  The notice of motion was adjourned for hearing on 22 October 2008.

6                     Ms Luck has not filed any submissions in accordance with these directions.

7                     By an undated notice of motion, filed on 20 October 2008, Ms Luck seeks further time in which to file submissions and a further adjournment of the hearing of the USQ’s notice of motion. 

8                     The USQ opposes the granting of any further adjournment.

9                     Although the Court will, normally, be sympathetic to the predicament of an unrepresented litigant faced with the need to prepare legal submissions, the Court is also bound to have regard to the interests of respondents when determining whether or not to accede to further requests for time for preparation.  Ms Luck submits that she requires the additional time because of certain medical conditions from which she suffers, the demands of her academic study and the pressure of work associated with other cases in which she is involved.  If, however, the purported appeal, is bound to fail, there would seem to be little to be gained by the granting of yet another adjournment.

10                  I have come to the view that the purported appeal is bound to fail and that, for this reason, the further adjournment sought by Ms Luck should be refused and the appeal dismissed.  My reasons follow.

11                  The Tribunal only obtains jurisdiction, pursuant to the combined operation of s 55(1) of the FOI Act and s 25(1) of the AAT Act, to deal with an application which seeks review of a deemed refusal of access to documents under the FOI Act, if certain statutory preconditions, prescribed by s 56(1) of the FOI Act, have been satisfied.  Section 56(1) provides:

“Subject to this section, where:

(a)                a request has been made to an agency or Minister in accordance with section 15; and

(b)               the period of 30 days, in relation to the request, mentioned in paragraph 15(5)(b), or that period as extended under subsection 15(6), has expired since the day on which the request was received by or on behalf of the agency or Minister; and

(c)                notice of a decision on the request has not been received by the applicant,

the principal officer of the agency or the Minister shall, for the purpose of enabling an application to be made to the Tribunal under section 55, be deemed to have made, on the last day of that period, a decision refusing to grant access to the document.”

12                  A deemed refusal to grant access to documents will thus only occur if the relevant request has been made to an “agency” or a “Minister”.  Ms Luck’s request was made to the USQ.  It is not a Minister.  Nor is it an “agency”.  An agency is defined in s 4 of the FOI Act to mean “a Department, a prescribed authority or an eligible case manager.”  The USQ is none of these things.  It is not a Commonwealth Department of State.  It is not established under a Commonwealth enactment or for the purposes of a Commonwealth Act.  It is established under a Queensland Act, the University of Southern Queensland Act 1998 (Qld).  It is not “an eligible case manager”.  That being so there has been no refusal deemed or actual of Ms Luck’s request for access to documents held by the USQ.  As a result s 55(1) of the FOI Act and s 25 of the AAT Act do not confer jurisdiction of the Tribunal to hear and determine Ms Luck’s application to it.  No other source of jurisdiction has been suggested.  There was, therefore, no decision, made by USQ, which the AAT had jurisdiction to review: see Shi v Migration Agents Registration Authority (2008) 248 ALR 390 at [132].

13                  The Tribunal, was therefore, correct in law in holding that it lacked jurisdiction and in exercising its powers under s 42A(4) of the AAT Act.  Its reasons for so doing might have been expressed in more detail.

14                  There is a further reason why Ms Luck’s purported appeal to this Court, has little prospect of success.  It is that, at least as presently drafted, her notice of appeal identifies no questions of law which could form the subject matter of the appeal: see TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 (per Gummow J).

15                  Section 31A of the FCA Act empowers the Court to give judgment for a respondent if an applicant or appellant “has no reasonable prospect of successfully prosecuting [a] proceeding …”  A proceeding may have no reasonable prospect of success even though it is not hopeless or bound to fail: see s 31A(3).  This is not a case in which contested evidence is involved: cf Boston Commercial Services Pty Ltd (ACN 114 658 070)  v GE Capital Finance Australasia Pty Ltd (ACN 070 396 020) (2006) 236 ALR 720 at 731 (per Rares J).  In such a case the Court will approach the potential application of s 31A with some caution.  USQ bases its application for summary judgment on a straight forward question of law: whether the AAT, as it held, lacks jurisdiction to entertain Ms Luck’s application.  The answer is, in my view, clear.  Ms Luck has pursued her application for access to documents under both Commonwealth and Queensland freedom of information legislation.  She may well have a right to challenge the USQ’s failure to make a decision on her application under the Queensland legislation.  She does not have that right under the Commonwealth Act for the reasons which I have explained.

16                  In these circumstances her proposed appeal has no reasonable prospects of success.  Indeed, it is bound to fail.  The Court should, in the exercise of its discretion, dismiss the purported appeal under s 31A of the FCA Act: see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 at 406-409 (per Gordon J).

Associate:

Dated:         22 October 2008