FEDERAL COURT OF AUSTRALIA

Ford v Child Support Registrar [2009] FCA 328

JOHN PATRICK FORD v CHILD SUPPORT REGISTRAR

VID 412 of 2007

RYAN J

9 APRIL 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The application by way of appeal be dismissed.

2.         The applicant pay the respondent’s costs, to be taxed in default of agreement.

Note:       Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          On 23 April 2007, the Administrative Appeals Tribunal (“the Tribunal”) handed down a decision which, effectively, denied the applicant access to various documents, and stopped him from making, without the Tribunal’s leave, further claims to those documents;  John Patrick Ford and Child Support Registrar [2007] AATA 1242. The question now before the Court is whether, on a proper construction of the relevant provisions of the Freedom of Information Act 1982 (Cth) (“the FOI Act”) and the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), the Tribunal was correct in denying the applicant access to those documents.

2                          An appeal lies from the AAT to this Court under s 44 of the AAT Act, on questions of law only:  see Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at 254 per Weinberg, Bennett and Edmonds JJ, and the authorities cited by their Honours. That being the nature of the appeal, there are three questions currently before the Court:

·            Whether the Tribunal stated and applied the law correctly in affirming a decision to uphold an exemption under s 37(1)(c) of the FOI Act;

·            Whether the Tribunal stated and applied the law correctly in affirming a decision to uphold an exemption under, in the alternative, s 41(1) of the FOI Act; and

·            Whether the Tribunal stated and applied the law correctly in making a direction under s 42B of the AAT Act.

Before analysing each of those provisions, it is convenient to set out a little of the background to this matter.

Factual Background

3                          The following facts, recited by Senior Member Handley in the Tribunal, are not contentious. On 2 November 2005, the applicant made the following request of the respondent;

‘My request for access to documents is for all emails and any other correspondence to, from, or between H (AKA Jenkins/ Epstein) and Shaun Epstein, from or to any other person or entity, according to that which I may have access under the Freedom of Information Act. This includes anything deleted or recoverable and for the period 30 August 2005 to 30 November 2005 inclusively.’

In correspondence, an officer of the respondent advised that the request had been interpreted as “being for documents wherein you or your circumstances are mentioned in any way, either explicitly or by reference”, to which the applicant responded:

‘I concur with your interpretation of my request, and add that it extends to documents that might be read in the context of me or my circumstances, i.e. that which has relevance. The context includes and is not limited to the criminal proceedings, relationships, the workplace, civil debt proceedings, FOI matters and so on. Documents include emails, texted documents or attachments to emails…

The qualification of to from or between also includes to or from any other person or institution, and does not restrict the scope to Epstein and H.’

4                          The use of the acronym “H” occurred when, after handing down the Tribunal’s decision in this matter, Handley SM published a corrigendum, the effect of which was to remove a person’s name from all public documents relating to this case.  I have continued the use of the same acronym which designates a member of the respondent’s staff.

5                          As can readily be observed, the applicant’s request as formulated was extremely wide. On 2 February 2006, the respondent advised by letter that it had been decided to refuse the request under s 24(1) of the FOI Act because the request “would substantially and unreasonably divert the resources of [the respondent] from its other operations”.

6                          On 21 March 2006, the applicant having refused to narrow or to refine his request, the respondent repeated its refusal under s 24(1), and added another ground of refusal invoking s 24A, which provides that “[r]equests may be refused if documents cannot be found or do not exist”. The delegate of the respondent then added that, even if the documents did exist, “their retrieval from backup tapes would be a substantial and unreasonable diversion of [the respondent]’s resources.”  Later, in its Statement of Facts and Contentions in the Tribunal, the respondent amplified its reliance on s 24A, contending that the applicant’s application was “futile” because the documents he had sought did not exist.

7                          In circumstances which are not presently relevant, one document, a print-out of an email dated 6 September 2005, was located. It came into the class of documents sought by the applicant. It is access to that document with which the Tribunal was, and, now, this Court is, concerned.

8                          At the hearing before the Tribunal, the applicant was also put on notice that the respondent intended to seek an order under s 42B of the AAT Act which is available where an application has been made but the Tribunal considers that the proceedings are frivolous or vexatious. Then the proceedings may either be dismissed, or a direction be made in terms like those formulated by the Tribunal here, that “the applicant must not, without the leave of the Tribunal, make any subsequent freedom of information applications to the Tribunal of a kind which concerns H and/or Ms Epstein”.  The respondent’s application under s 42B was made against a background of 22 requests to the respondent and, subsequently, 18 applications to the Tribunal.

9                          To put the present application in context, it is useful to outline something of the applicant’s circumstances.  At the time when this matter was heard by the AAT, he was serving a term of imprisonment imposed after a trial in December 2005 in which he had been found guilty in the County Court of Victoria of rape, threat to kill, stalking, aggravated burglary, false imprisonment, intentionally causing injury and threatening to inflict serious injury. He was sentenced to eight years’ imprisonment and required to serve a minimum of five years before becoming eligible for parole.  Those facts are relevant only to the extent that they bear upon the respondent’s reliance on them in contending for a particular application of the statutory provisions in issue.   

Grounds of Appeal

10                        As indicated above, the applicant relies on three grounds of appeal before this Court. It is convenient to refer to each of them in turn.

Section 37

11                        Section 37 of the FOI Act provides, in relevant part:

‘37       Documents affecting enforcement of law and protection of public safety

(1)       A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

…

(c)        endanger the life or physical safety of any person.’

12                        Before the Tribunal, this section assumed significance because the respondent had relied on it as exempting from production the 6 September email which had been sent by Mr Epstein and addressed to H.  The underlying circumstances of the exemption appear from Mr Epstein’s cross-examination in the Tribunal, which was summarised at [49] of the Tribunal’s decision as follows:

‘He said that he had an apprehension of his physical safety because he could recall that the email of 6 September 2005 contained a judgement which wasn’t a pleasant judgement and I think there’s a reason to think that you might find that personally offensive and that concerns me when you are released. Additionally, Mr Epstein said that the email of 6 September 2005 – so far as he could recall – raised something that I – from what I understand hasn’t been raised in any other forum. And I would not be happy about you having access to it. Additionally he said that if I’ve made a comment or judgement about you that is anything less than pleasant, and, let’s face it, its not, then I would be crazy to consider that it would not lead me to danger. When the applicant put to him that he could not possibly be in danger because he was expected to serve another four years of imprisonment and would not be able to leave the State of Victoria for five or six years, Mr Epstein said well I’m privy to a lot of information about you, John, and anyone in my position would be fearful.’

13                        Senior Member Handley then accepted, at [98], that, on the evidence, the release of the email “would create a reasonable expectation, which was not irrational, absurd or ridiculous that, objectively, Epstein was at risk”.  The Senior Member’s process of reasoning appears from [94]–[97] of the Tribunal’s decision.  He first pointed out that the County Court jury, although it had not witnessed any acts of violence by the applicant, was satisfied on the evidence that he was guilty of crimes involving violence.  Epstein, knowing of that history of violence, had a reasonable apprehension that, if the contents of the disparaging email were disclosed, he would be at risk, after the applicant had been released from custody, of violence or danger to his life or physical safety.  In the circumstances, the Senior Member found that there was an objectively reasonable basis for Epstein’s fear.

14                        The process of reasoning adopted by the Tribunal therefore accords with the approach taken by Mansfield J in Centrelink v Dykstra [2002] FCA 1442. There, his Honour, at [24], characterised as “appropriate” the question “whether the disclosure of the subject documents or any of them would or could reasonably be expected to endanger the life or physical safety of any person”. As his Honour pointed out in the same paragraph, the authorities do not support the view that s 37(1)(c) requires a finding of what, on the balance of probabilities, might occur as a result of the disclosure of the documents;  Attorney-General’s Department v Cockroft (1986) 64 ALR 97, per Sheppard J at 112;  see also Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163.  In Dykstra, as here, the Tribunal properly -

‘… set out to judge objectively whether there was a possibility that the disclosure of the documents could endanger the life or physical safety of… persons, and if so whether that possibility was one which was a reasonable one as distinct from one which was irrational, absurd or ridiculous.’

The decision arrived at was open to the Tribunal on the evidence, and its process in arriving at it did not involve any error of law.

15                        However, by his amended notice of appeal, the applicant raised questions as to what weight, if any, should have been placed by the Tribunal upon -

‘(i)       any evidence that a person already felt endangered irrespective of the release of the document for which exemption was sought;

(ii)        the applicant having failed to give an undertaking or assurance that he would not act in a violent manner;

(iii)       the subjective views of the author of the relevant email.’

16                        Those are not matters to which this Court can properly direct itself in the circumstances of this case. There wasevidence on which the Tribunal’s finding was based.  In coming to its decision, the Tribunal did not misdirect itself on the content of the relevant law or its application to the facts before it.  It follows that no error of law has been demonstrated which would enliven the jurisdiction of this Court under s 44 of the AAT Act.  It is not to the point that this Court, if required to decide the merits of the case for itself, might have come to a different conclusion from that reached by the Tribunal.

17                        Section 37(1)(c) of the FOI Act requires a decision-maker to come to a reasonable, rational view about the objective likelihood of a person’s life or physical safety being endangered by the release of the document in question. Account must be taken of all the relevant circumstances, so as to arrive at a decision which is not “irrational, absurd or ridiculous”. That assessment will necessarily involve a degree of speculation. It will require the balancing of multiple factors, and according certain of them a greater or lesser weight. What weight is to be attached to any given factor or factors is not, assuming the decision to be in the range of what is reasonably available, a question of law.

18                        It follows, in my view, that nothing in the Tribunal’s decision applying s 37(1)(c) or the reasoning which underlies that decision can be characterised as an error of law.  The first ground of appeal, therefore, cannot be sustained.

Section 41

19                        Given the conclusion which I have reached in relation to s 37(1)(c), it is not necessary for the disposition of this appeal to address the second ground of appeal. However, I shall explain why that is so.

20                        Section 41 of the FOI Act provides, in relevant part:

‘41       Documents affecting personal privacy

(1)       A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

(2)       Subject to subsection (3), the provisions of subsection (1) do not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

(3)       Where:

(a)       a request is made to an agency or Minister for access to a document of the agency, or an official document of the Minister, that contains information concerning the applicant, being information that was provided by a qualified person acting in his or her capacity as a qualified person; and

(b)       it appears to the principal officer of the agency or to the Minister (as the case may be) that the disclosure of the information to the applicant might be detrimental to the applicant’s physical or mental health, or well‑being;

the principal officer or Minister may, if access to the document would otherwise be given to the applicant, direct that access to the document, so far as it contains that information, is not to be given to the applicant but is to be given instead to a qualified person who:

(c)        carries on the same occupation, of a kind mentioned in the definition of qualified person in subsection (8), as the first‑mentioned qualified person; and

(d)       is to be nominated by the applicant.’

21                        As an alternative to his affirmation of the respondent’s decision on the grounds afforded by s 37(1)(c), Senior Member Handley reached the following conclusion about the application of s 41 of the FOI to the disclosure of the 6 September email;

‘99.      I am also satisfied that the document is exempt pursuant to s 41(1) of the FOI Act because if it was disclosed it would involve the unreasonable disclosure of personal information about any person. The respondent acknowledges… that the email does contain personal information about the applicant. I am satisfied by my reading of the document that its content – and specifically that part concerning personal information – has nothing to do with the operations of the respondent… it is inconceivable that the email of 6 September 2005 or any part of it could be used by the respondent in any proceedings. I am satisfied that the opinion expressed is of a personal nature and is not work related. Whilst balancing these aspects against public interests in the right otherwise existing of the applicant to have access to information about himself, I am not satisfied on balance that the document should be released under s 41 of the FOI Act.’ (original emphasis)

The applicant’s objection to the Senior Member’s conclusion is twofold.  First, he says, an inference must be drawn that the Tribunal has affirmed the withholding of personal information about him and, secondly, the Tribunal made its decision under s 41(1) without considering s 41(2).

22                        The respondent implicitly accepts the first of the applicant’s contentions (as it must, given [99] of the Tribunal’s reasons). The respondent then accepts that the Tribunal overlooked the s 41(2) exclusion. On my reading, it is open to question whether Senior Member Handley “overlooked” that provision or, by implication, simply concluded, on the basis of his reading of the document, that s 41(2) had no application.  Whatever be the correct understanding of the Senior Member’s reasoning, it is unnecessary to come to a concluded view on this issue.

23                        Section 41(1) of the FOI Act, consistently with the conferral by s 3(1)(b) of a “general right of access” to documents, creates a general exemption, which applies irrespective of who has sought access to the document.  Taken to its logical conclusion, the result of that reading is that not even the person whose personal information is the subject of the exclusion could overcome the obstacle erected by s 41(1).  The answer to that seeming absurdity is in s 41(2), which, in the words of Hall DP in Re Anderson and Australian Federal Police (1986) 11 ALD 355, at 365;

‘… ensures that a person is entitled to access to a document to the extent that it contains information relating to his own affairs. Where the information relates solely to the applicant's personal affairs, there is usually no difficulty in identifying the documents or parts of documents to which access may be granted. But where… the applicant's personal affairs may be inextricably interwoven with the personal affairs of other persons… there is a nice question as to how s 41 was intended to operate.’

The Deputy President reasoned, especially at 367, that, where the personal information of an applicant is inextricably interwoven with the personal information of others, s 41(2) cannot operate, as it might have done in this case had access been granted, to subvert the operation of s 41(1).  The Deputy President said in that context, at [49];

‘There will be circumstances where disclosure of the third party's affairs as part of the applicant's affairs may well involve an “unreasonable disclosure” within the meaning of s 41(1). In such a case, a claim of exemption under s 41(1) is appropriately mounted. However, where it is clear that, by reason of the relationship or interaction between the parties, the information is such that it would in any event be known to the applicant, and its disclosure to the applicant as matter relating to him would not be likely to be objected to, nothing is to be achieved by mounting claims of exemption. It seems to me to be consistent with the object and purpose of the Act for such information to be disclosed. No question of invasion of privacy would be involved in those circumstances.’

24                        It was, accordingly, open to the applicant to impute to the Tribunal a possible error of law constituted by its failure to consider the degree to which the personal information of the applicant was interwoven with any other personal information to which s 41(1) applied.  I have not been persuaded that the Tribunal actually committed that error because its reasons, interpreted with the benevolence enjoined by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272, do not necessarily indicate that the Tribunal had failed to consider the application of s 41(2).  However, even if the Tribunal had been guilty of that oversight, it could not avail the applicant because of the conclusion reached earlier in these reasons about the application of s 37(1)(c).

Section 42B

25                        The next ground of appeal centres on the Tribunal’s order that the applicant must not, without the leave of the Tribunal, bring any further freedom of information applications to it concerning H and/or Mr Epstein.  Section 42B of the AAT Act provides;

‘42B    Power of Tribunal where a proceeding is frivolous or vexatious

(1)       Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:

(a)       dismiss the application; and

(b)       if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

(2)       A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.

(3)       The Tribunal may discharge or vary such a direction.’

26                        Whether an application or other proceeding can be described as “frivolous or vexatious”, has been examined in a number of authorities including Attorney-General (Vic) v Wentworth (1998) 14 NSWLR 481.  In that case it was held that proceedings may be so characterised if they have been instituted with the intention of annoying or embarrassing the person against whom they are brought; if they are brought for purposes collateral to a court’s adjudication of the dispute; or if they are, irrespective of the litigant’s motive, so obviously untenable or manifestly groundless as to be utterly hopeless;  see per Roden J, at 491.

27                        In the AAT, Senior Member Handley held that at least two of the criteria set out by Roden J had been satisfied.  First, the applicant’s purpose in bringing the applications then before him had been to annoy H and Epstein;  see at [107].  Secondly, the Senior Member concluded, at [109], that “having reviewed the merits of the application I am satisfied that it cannot succeed”.  Accordingly, he made the order to which I have already referred, that the applicant must not make, without leave, any further application to the Tribunal in relation to freedom of information requests concerning H or Mr Epstein.

28                        In granting the respondent’s application, the Senior Member referred, at [109], to two authorities in this Court, Duncan v Fayle (2004) 138 FCR 510 and Theo v Secretary, Department of Family and Community Services (2006) 42 AAR 503.  In Duncan, French J said, at 517 (in a passage quoted with apparent approval by Spender J in Theo, at 508);

‘A decision dismissing an application as frivolous or vexatious under s 42B(1) is a decision which finally disposes of the application. It has necessarily involved a consideration of the merits in the sense that it requires a finding that the application cannot succeed.’

His Honour then went on to explain the views expressed by the three judges of this Court sitting as Presidential Members of the Tribunal in Re Williams and Australian Electoral Commission (1995) 38 ALD 366, that the application of s 42B attracts the same general criteria for dismissal as apply to proceedings in this Court.

29                        The question of law raised by this ground of appeal is, accordingly, whether on the application of the well-understood tests for determining whether a proceeding is frivolous or vexatious, it was open to the Tribunal to characterise the applicant’s application in that way.  To answer that question, it will be necessary to set out the background to the respondent’s application under s 42B.

30                        Between June 2004 and the date of the hearing before the AAT, the applicant had made 18 FOI requests. Further, the applicant had, to the date of hearing, lodged with the AAT 15 applications for review.  As Senior Member Handley said at [105] of his decision, “[a] feature of the applications to date has been the request by the [applicant] for documents sent to or from H and/ or Epstein and then for defined periods of time”.  The Senior Member also noted, at [106] and [108], that a common feature of the applications to the AAT was that they had been withdrawn after lodgement, and, in at least one case, had concerned documents to which the applicant had already been granted access, or documents which would not reasonably be thought to have been in the possession or control of the respondent.  On the basis of all the evidence before him, the Senior Member concluded that;

‘In my view his conduct has been with the intention of annoying the Agency and particularly H and Epstein… I agree with the submissions of the respondent that the applicant’s behaviour can be characterised as stalking and harassment.  I think that it also borders on being predatory. His behaviour as evident by these multiple applications is to annoy H and Epstein …’

31                        Those findings of fact were open to the Senior Member on the evidence before him, and I can discern no other legal basis on which they can be impugned.

32                        It is clear, as indicated, for example, in Cooper v Comcare (2002) 118 FCR 157, at 161, that the Tribunal’s power under s 42B is to be exercised sparingly, particularly in a case like the present where there is no right to a review of the merits of the Tribunal’s decision but the appeal under s 44 of the AAT Act is confined to a question of law.  Nonetheless, I have not been persuaded that there has been an improper exercise of the Tribunal’s discretion under s 42B.  Nor have I been able to conclude that it was not open to the Tribunal to find that proceedings commenced and maintained by the applicant were frivolous and vexatious.

33                        The frequency of the applicant’s FOI requests and applications for review of decisions on those applications, when seen in the context of their repetitive nature and their occasional withdrawal, leaves open an inference that the requests and applications were made for purposes other than a genuine concern to have access to the contents of the subject documents.  Whether the applicant’s true purpose was to cause annoyance to one or more of H, Epstein and the respondent’s FOI officer, or was some other collateral purposes is not really significant.  It is sufficient that a finding was available that the institution and prosecution of the proceedings satisfied at least one of the tests formulated by Roden J in Wentworth (supra).  When it moved to the merits of the claim, the Tribunal found here, as it did of necessity in Duncan (supra) (see per French J at 517 [22]), that, whatever the applicant’s motive in bringing the application, it was not maintainable.

34                        That was so, principally, because granting the application would confer no practical benefit on the applicant.  As the reasons of the Tribunal emphasise, the email of 6 September was of a purely personal nature and therefore of no legitimate interest to Mr Ford;  see at [99]–[100].  To give him access to it could do no more than satisfy his curiosity about what had been said in the email of 6 September;  see Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429, per Heerey J at 441.

35                        Once it is accepted that the requests had no practical utility, they attract the application of the principles enumerated in Re Reddish and Civil Aviation Safety Authority [1999] AATA 721. There, at [33], Blow DP, dismissing an application under s 42B(1)(a) of the AAT Act, said:

‘33.      In this context, "frivolous" means "obviously unsustainable": Attorney-General of the Duchy of Lancaster v London and North Western Railway [1892] 3 Ch. 274. The cases of Gowing [(1990) 11 AAR 411], Surf Air [(1991) 22 ALD 118] and Williams [(1995) 38 ALD 366]  are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant. Plainly this Tribunal will not be able to make a decision that will be of any practical benefit to the applicant, and it would be a waste of everyone's time and money for any of these three applications to be allowed to remain on foot.’

As I read it, the principle which the Deputy President there adumbrated is that, if the relief sought will be of no practical benefit to the applicant, it will not be granted.  The Tribunal has consistently applied Reddish (supra);  see, for example, Re Jack Denis Mulder and Centrelink (2005) 41 AAR 468.  In my view, that is a correct application of s 42B in a case in which a respondent claims that the invocation of the Tribunal’s jurisdiction is frivolous or vexatious.

36                        Here, as Senior Member Handley found at [100] of his reasons in relation to the 6 September email, “it is… apparent from the document that its content has nothing to do with the operation of the respondent or of government”. In this case, a decision to release the document could not possibly have conferred a practical benefit on the applicant so, on analysis, his claim is “obviously untenable”, if not “manifestly groundless”, to use the expressions favoured by Roden J in Wentworth (supra).

37                        In the final analysis, the applicant repeatedly made applications under the FOI Act in substantially similar terms and, when they were refused, applied to the Tribunal for review of those refusals on much the same grounds.  Significant numbers of those applications were withdrawn before they were resolved.  The inference was therefore reasonably open that the applications had been made to annoy or harass one or more of H, Epstein and the respondent’s FOI officer.  Even if, contrary to that inference, the tendency to annoy or harass had been co-incidental, none of the relevant applications was capable of conferring a practical benefit on the applicant.  It was therefore open to the Tribunal, to refuse, as it did, the application.

38                        It should be emphasised that the Tribunal’s decision under s 42B was not akin to summary judgment pronounced at an early interlocutory stage of proceedings (as to which see General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, per Barwick CJ, at 129 and Jefferson Ford Pty Ltd v Ford Motor Company of Australia (2008) 167 FCR 372, per Rares J, at 387-8; and per Gordon J, at 406).  The Tribunal’s conclusion was reached after a full hearing, and a very full consideration of the nature and merits of the applicant’s claims. The effect of the direction under s 42B was to prevent furtheragitation of issues between the applicant, H, Epstein and the respondent, with the objective described at [111] of the Tribunal’s decision that “[l]itigation initiated by the applicant involving H and Epstein must surely either end, or at the least, be scrutinised by a leave application”.  The applicant has, therefore, not been shut out from any recourse at all to the Tribunal.  Rather, by reason of the manner in which he has chosen in the past to pursue applications in that forum, he has now been required to demonstrate reasonable grounds on which the Tribunal should grant him leave to initiate further applications to it.  In the circumstances, it was a reasonable exercise of the Tribunal’s discretion to require future applications by the applicant to be “filtered” in that way.

39                        As neither the Tribunal’s process of reasoning nor its final order under s 42B discloses any error in the formulation or application of the law, this ground of appeal must also fail.

Conclusion

40                        For the reasons outlined above, the first ground of the appeal has not been made out, the second ground does not require to be determined and the third ground also fails.  The application by way of appeal must therefore be dismissed with costs.

Associate:

Dated:         9 April 2009