FEDERAL COURT OF AUSTRALIA

Chu v Telstra Corporation Limited [2009] FCA 1384

FREEDOM OF INFORMATION – appeal – Administrative Appeals Tribunal found that all reasonable steps had been taken and documents did not exist or could not be found – whether appeal raised questions of law

Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(c), 40(1A), 40(1C), 44AA, 44(1)

Freedom of Information Act 1982 (Cth) ss 11(2), 15A, 24A

Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 cited

Chu v Telstra Corporation Ltd [2005] FCA 1730 (2005) 147 FCR 505 cited

Chu v Telstra Corporation Ltd [2008] FMCA 645 cited

Khoh v Telstra Corporation Ltd [1998] AATA 45 cited

Stockdale v Alesios [1999] 3 VR 169 cited

RICHARD CHU v TELSTRA CORPORATION LIMITED

VID 697 of 2008

GRAY J

26 NOVEMBER 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal.

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

The nature and history of the proceeding

1                          The appellant is a former employee of the respondent.  He was retrenched involuntarily on 8 September 1997.  Since that time, he has engaged in prolonged, and at times sporadic, attempts to gain access to documents concerning him, held by the respondent, pursuant to the Freedom of Information Act 1982 (Cth) (“the FOI Act”). 

2                          On 10 September 2007, the Administrative Appeals Tribunal (“the Tribunal”) made a decision, affirming a decision of the respondent, refusing to give the appellant access to any documents other than those it had already given him.  The Tribunal determined, pursuant to s 24A of the FOI Act, that all reasonable steps had been taken to find further documents and that the Tribunal was satisfied that further documents may be in the respondent’s possession, but could not be found or did not exist.  Unless this finding could be set aside on appeal, it is fatal to the appellant’s attempts to obtain access to further documents. 

3                          The appellant appealed from the Tribunal’s decision to this Court, pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).  By that subsection, such an appeal is limited to a question of law.  Pursuant to s 44AA of the AAT Act, the appeal was transferred to the Federal Magistrates Court.  On 15 August 2008, the learned federal magistrate dismissed the appeal with costs.  Her Honour’s reasons for judgment are published as Chu v Telstra Corporation Ltd [2008] FMCA 645.  The appellant then appealed to this Court from that judgment.

4                          The appellant remains convinced that the respondent has further documents that fall within his request under the FOI Act.  He maintains that there are further searches that could be carried out to locate those documents, and that it would be reasonable for Telstra to conduct those searches.  He is unable to accept that the Tribunal’s decision concluded this issue against him, and that its decision was essentially one of fact.  The appellant has had difficulty arguing his appeal by reference to questions of law. 

The facts

5                          The relevant facts are summarised in the reasons for judgment of the federal magistrate.  The appellant’s employment history with the respondent goes back to 1989, when the respondent was Telecom Australia.  After the appellant had been retrenched on 8 September 1997, solicitors acting on his behalf made a request, by letter dated 13 November 1997, pursuant to the FOI Act, for access to all of the files held by the respondent in relation to the appellant.  The appellant did not pay the required application fee until 13 February 1998, after which the respondent began to process the request.  By letter dated 20 April 1998, the respondent advised the appellant that it had decided to grant full access to all the documents that had been found.  Those documents were described in the following terms:

·     a complete copy of the legal file compiled in anticipation of an unfair dismissal case concerning Mr. Chu, including all available documents from Mr. Chu’s Managers and all available personnel documents

·     a copy of all paperwork dealing with the payout of Mr. Chu’s redundancy

·     a copy of all standard system reports dealing primarily with leave and pay history details; as previously discussed such standard reports include any information generally considered to be of use to a non-systems person and they are released free of charge

6                          By letter dated 6 July 1998, the appellant’s solicitors asked the respondent to search its records again, noting that no personnel files had been released.  The appellant’s solicitors wrote again on 9 March 1999, requesting a reply to their letter of 6 July 1998.  By letter also dated 9 March 1999, the respondent advised that it had not received the letter dated 6 July 1998.  It also advised that a comprehensive search had taken place, involving the appellant’s business managers, the personnel area and the legal area, and that the existence of any other personnel documents could not be established.

7                          Almost five years later, on 24 March 2003, the appellant sent a fax to the respondent requesting an internal review of the decision to refuse access to his personnel records.  By fax dated 7 November 2003, the respondent advised the appellant that the period in which he could seek internal review had been extended.  By letter dated 26 November 2003, the respondent released to the appellant additional documents that had been found.

8                          On 28 January 2004, the appellant applied to the Tribunal for review of the decision on internal review.  The respondent then conducted further searches prior to the Tribunal hearing.  On 9 June 2004, the respondent gave the appellant access to an occupational health medical file relating to him.

9                          On 28 October 2004, the Tribunal affirmed the respondent’s decision.  The appellant appealed to this Court.  On 1 December 2005, Finn J set aside the Tribunal’s decision and remitted the matter to the Tribunal for re-determination.  See Chu v Telstra Corporation Ltd [2005] FCA 1730 (2005) 147 FCR 505.  At [34], his Honour found that the Tribunal did not address itself to the express terms of s 24A of the FOI Act, by asking itself whether reasonable steps had been taken, rather than whether all reasonable steps had been taken.  At [35]-[37], his Honour said:

It is understandable, where the decision as to the taking of all reasonable steps is left to the agency or Minister concerned (subject to Tribunal review), why this more stringent requirement has been imposed.  A person requesting access to a document that has been in that agency’s or Minister’s possession should only be able to be denied on the s 24A ground when the agency (or the Minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question.  Taking the steps necessary to do this may in some circumstances require the agency or Minister to confront and overcome inadequacies in its investigative processes.  Section 24A is not meant to be a refuge for the disordered or disorganised.

The Tribunal’s failure to appreciate the significance of “all” has, in my view, led it to adopt a tempered and erroneous view of what is required to be done for s 24A purposes.

In saying this I infer, as I earlier indicated, that it adopted the approach to s 24A espoused in earlier Tribunal decisions.  In consequence I am not satisfied that the Tribunal properly understood the critical evaluation it was required to make of the steps taken by Telstra.

The case at first instance

10                        The notice of appeal from the Tribunal’s decision, dealt with by the Federal Magistrates Court, was 23 pages long.  It identified 10 questions, said to be questions of law.  A substantial amount of the 20 pages of the document devoted to the grounds of appeal was taken up by detailed comments on the facts, including suggestions that the Tribunal ought to have mentioned in its reasons for decision details which the appellant said were in the evidence before it.  When he turned to dealing with his questions of law, in some cases the appellant also took issue with the Tribunal about the facts. 

11                        In her reasons for judgment, the federal magistrate dealt with all ten of the questions raised by the appellant.  In addition, her Honour dealt with six additional questions and with an attempt by the appellant to provide the Court with further submissions after the hearing of the appeal. 

12                        The first question raised again the issue dealt with by Finn J, whether the Tribunal had failed to appreciate the significance of the word “all” in s 24A of the FOI Act and had failed to understand properly, and to carry out a critical evaluation of, the steps taken by the respondent.  Her Honour concluded from the Tribunal’s reasons that it understood the nature of the task it was required to perform.  The appellant had relied on an earlier Tribunal decision in Khoh v Telstra Corporation Ltd [1998] AATA 45 and had attempted to argue that the search carried out in his case was less than that carried out in Khoh.  The federal magistrate held that Khoh could not be taken as a precedent that all filing cabinets had to be searched to prove that all reasonable steps had been taken.  Her Honour also rejected the proposition that the search in Khoh’s case was more intensive than the search in the present case.  Her Honour also rejected an argument based on the adequacy of the inquiries made by the particular officer in the present case, when compared with the same officer’s inquiries in Khoh.  Her Honour reminded herself that the essential question was whether all reasonable steps were taken to locate the relevant documents.  Her Honour concluded that it was open to the Tribunal to reach the conclusion that all reasonable steps had been taken.  Her Honour did make some remarks critical of the respondent’s document storage and retrieval system.  These were based on findings of the Tribunal.

13                        The second and third questions in the appeal suggested error and ambivalence on the part of the Tribunal in relation to events prior to 13 February 1998.  The Tribunal had characterised the appellant’s evidence and contentions relating to events prior to that date as not directly relevant to the Tribunal’s decision-making process.  The appellant contended that this was an error, and that it was inconsistent with the Tribunal’s reliance on the respondent’s documents that preceded that date.  The federal magistrate pointed out that the Tribunal in fact referred to a number of events that preceded 13 February 1998.  Her Honour held that the Tribunal had not failed to have regard to events prior to 13 February 1998, but had concluded that those events were not directly relevant to what it had to decide.  The appellant had complied with s 15A of the FOI Act, by making a request in accordance with the respondent’s established procedure for requesting personnel records, so there was no issue about his being barred by s 15A from making his request pursuant to the FOI Act.  The provision of some documents to the appellant in 1997 left open the question whether all reasonable steps had been taken since then to find the documents the appellant sought.  As her Honour said, this was the question the Tribunal had to determine.  Her Honour characterised the appellant’s real complaint as being that there should have been an internal review of a particular decision.  As her Honour said, once the matter reached the Tribunal, the internal decisions of the respondent were irrelevant, because the Tribunal was required to make the correct or preferable decision on the material before it.  What had been done by the respondent’s officers was relevant in determining whether all reasonable steps had been taken, but the views of those officers about that issue were immaterial.  Her Honour concluded that the Tribunal had taken into account events prior to 13 February 1998, to the extent that they were relevant.  Her Honour then distinguished the material provided by the respondent from that on which the appellant had intended to rely, by saying that the respondent’s material was relevant to where documents might have gone. 

14                        The fourth question challenged a conclusion of fact by the Tribunal as involving extinguishing the significance of a particular document in evidence before it apparently on a whim.  The federal magistrate concluded that the Tribunal had simply reconciled two pieces of conflicting evidence.  Even though it had reached a different conclusion on that issue from the decision that was set aside by Finn J, the Tribunal was entitled to take a different view of the facts when it considered the matter again, and was obliged to do so if it realised it had made a mistake previously or had seen the matter more clearly the second time.

15                        The fifth question concerned submissions the appellant had made about the earlier Tribunal proceeding.  The appellant suggested that the Tribunal had accepted the respondent’s argument that those submissions were irrelevant.  The federal magistrate pointed out that, on the face of it, it did not appear that the Tribunal had ruled expressly on the respondent’s argument.  The Tribunal did say that the appellant’s submissions should have been made at the earlier hearing, but went on to summarise them and expressly accepted one of the submissions, concerning a mistake about the date of release of the occupational health medical file.  The Tribunal also acknowledged that it had been remiss in not explaining in the earlier decision what it had meant by the notion of “exhaustive searches”.  Her Honour concluded that it could not be said that the Tribunal acceded to the respondent’s argument as to the irrelevance of the appellant’s submissions about the earlier proceeding.  To the extent that those submissions were relevant, the Tribunal took them into account. 

16                        The sixth question asked whether the Tribunal had acted improperly by depriving the respondent’s witnesses of the opportunity to answer questions freely on their own upon being examined or cross-examined.  The appellant referred to three instances where he said the Tribunal had intervened improperly during the cross-examination of witnesses.  In the first case, her Honour concluded that it was appropriate for the Tribunal to stop the appellant questioning a witness about speculative matters.  The second case concerned an exchange about whether one officer had sought advice from another.  The advocate appearing for the respondent objected because of the possibility that legal advice had been involved in the exchange between the two officers.  The Tribunal clarified the evidence that had been given.  The federal magistrate found that the Tribunal might have been wrong about whether the officer giving evidence had no recollection of speaking to the other officer about the appellant’s application, but held that this was nevertheless irrelevant to the question the Tribunal had to determine.  The third case concerned the Tribunal’s intervention in an exchange about the degree of formality in requests by one officer to another to make searches.  The federal magistrate regarded this as a proper intervention by the Tribunal to clarify a question.  Her Honour concluded that the Tribunal’s approach was fair, focusing on relevant matters while allowing the appellant to elicit the appropriate evidence.

17                        In his seventh question, the appellant fastened on Finn J’s statement that s 24A of the FOI Act is “not meant to be a refuge for the disordered or disorganised.”  The appellant asked whether the Tribunal had appreciated this.  In fact, as the federal magistrate pointed out, the Tribunal had referred specifically to Finn J’s comment, indicating that the Tribunal had taken the comment into account.  The federal magistrate referred to the Tribunal’s findings of fact about the respondent’s record management.  Her Honour concluded that the Tribunal did appreciate that s 24A of the FOI Act is not intended to be a refuge for the disordered or the disorganised.  At the same time, the Tribunal recognised that the respondent’s system imposed severe limitations on its ability to retrieve the appellant’s document.  At [53], her Honour said:

Whatever the intent behind s.24A, it cannot magically correct a “system” that in the past has been disordered and disorganised.  Section 24A can demand that logical and thorough investigations be undertaken, but it cannot change the historical fact that a particular document storage and retrieval “system” is disordered and disorganised.

18                        Her Honour pointed out that the Tribunal had found as a fact that, within the confines of its previous system, the respondent had taken all reasonable steps to find the documents the appellant sought.  In her Honour’s view that finding was open on the evidence.  Her Honour then dealt with arguments the appellant put forward in relation to the facts, concluding that the Court could not disturb the Tribunal’s findings of fact.  Her Honour then dealt with an argument that the Tribunal had not indicated how much weight it had given to hearsay evidence.  Her Honour held that it was unnecessary for the Tribunal to itemise the weight it gave to each aspect of the evidence.  The Tribunal was entitled to give the evidence such weight as it deemed fit.

19                        The appellant’s question eight raised the issue whether the Tribunal had made a decision that no reasonable decision-maker would have made.  This question turned on whether the Tribunal’s interpretation of one of the appellant’s email requests was unreasonable.  The issue was whether, in seeking access to a file “at a future time to be nominated”, the appellant was indicating (as the Tribunal thought) that he would nominate the time, or was indicating (as the appellant said he thought) that the recipient of the email would nominate the time.  The federal magistrate did not consider the Tribunal’s interpretation of the email to be unreasonable.  The appellant also relied on a series of complaints about the Tribunal’s treatment of various factual issues as evidence of the unreasonableness of its decision.  The federal magistrate did not consider that any of the Tribunal’s conclusions on those issues, or any of the omissions the appellant complained of, were unreasonable.  Her Honour then pointed out that the ground of unreasonableness does not apply to unreasonable interpretations of evidence, but to decisions that are themselves so unreasonable that no reasonable decision-maker could have made them.  Her Honour was not persuaded that the matters identified by the appellant, whether singly or in combination, demonstrated that the Tribunal’s decision was unreasonable to the requisite degree, or at all.

20                        The appellant’s ninth question concerned whether he was entitled to a refund of his application fee.  As the appellant did not suggest that he had asked the Tribunal for a refund of that fee and the Tribunal had refused to give it to him, the federal magistrate could not see how the question could raise an error of law on the part of the Tribunal.

21                        The appellant’s tenth question asked whether the Tribunal had taken the right approach for the rehearing.  The appellant argued that the Tribunal had failed to evaluate critically the steps taken by the respondent, but had concentrated on the fact that almost everything requested by the appellant had been supplied.  The federal magistrate acknowledged that the Tribunal had observed that the only documents the appellant sought that had not been received were his annual performance reports and an entry in his occupational health medical file concerning the events of 2 September 1994.  Her Honour was not persuaded that the Tribunal failed to evaluate critically the steps taken by the respondent.  Her Honour referred to correspondence after the Tribunal hearing, in which the Tribunal wrote to the respondent’s solicitors, referring to the respondent’s Adelaide site, and asking if any of the required documents were held there.  This demonstrated the active consideration of the Tribunal as to whether there were gaps in the respondent’s investigation. 

22                        The appellant’s first additional question concerned this post-hearing correspondence.  The appellant asked whether it amounted to a denial of procedural fairness.  The appellant received copies of the letter from the Tribunal to the respondent and the respondent’s reply.  He then had some three months to make any further submission or invite the Tribunal to hear any further evidence.  He did not do so.  The federal magistrate concluded there was no denial of procedural fairness, because the appellant had had ample time to put to the Tribunal whatever he wished to say about the correspondence.

23                        The appellant’s second additional question raised the issue of bias on the part of the Tribunal.  The appellant argued that the Tribunal had prejudged his case, by carrying over its mind-set from its earlier decision to the second decision.  The federal magistrate was not persuaded that the Tribunal carried over its mind-set.  Her Honour was not persuaded that an informed lay observer would reasonably have apprehended that the Tribunal had carried over its mind-set.  Her Honour held that it was not compulsory for the Tribunal to be constituted differently after remittal from the Court.  The nature of the error that had been identified did not make it necessary or desirable that the Tribunal be reconstituted to avoid actual or apprehended bias.  In her Honour’s view, nothing the Tribunal did could lead to a conclusion that it was actually biased, or could have given rise to apprehended bias. 

24                        The appellant’s additional question three was whether the Tribunal disregarded the appellant’s submission based on Khoh that a formal search request was not issued and the search did not go down to the filing cabinets level.  In her Honour’s view, the submission based on Khoh was dealt with sufficiently by the Tribunal. 

25                        In his fourth additional question, the appellant referred to procedural fairness.  He raised a question of fact about the Tribunal’s understanding of the evidence.  The federal magistrate held that the Tribunal’s task was to determine whether all reasonable steps had been taken to find the relevant files.  Even if there had been a denial of procedural fairness in relation to the Tribunal’s conclusion on the particular item of evidence, it could not have made a difference to the decision.

26                        The appellant then raised in his fifth additional question the issue whether the Tribunal had denied him procedural fairness by revoking a summons to give evidence issued to a Mr Atkins.  The appellant told the Tribunal on 7 March 2007 that the summons had not been served on Mr Atkins.  He did not know the address of Mr Atkins.  He asked the Tribunal to take steps to ensure the attendance of Mr Atkins.  He told the Tribunal that Mr Atkins would tell it that he had taken no action in relation to the appellant’s request for access to documents dated 24 December 1996.  The Tribunal said that Mr Atkins and the respondent were not required to take any action until a valid request was received on 13 February 1998.  The Tribunal considered that the evidence proposed to be adduced from Mr Atkins was not relevant to any issue in dispute and rescinded the summons.  The federal magistrate held that the Tribunal was correct to rescind the summons to Mr Atkins.  It was not material that Mr Atkins did not act on the request of 24 December 1996.  The Tribunal accepted as a matter of fact that he did not act on that request.  The question for the Tribunal was whether all reasonable steps had been taken by the time of the Tribunal’s decision.  The evidence proposed to be adduced from Mr Atkins was not probative as to this question.  The file held by Mr Atkins had been provided to the appellant in any event.

27                        The appellant attempted to raise as a sixth additional question the issue whether the respondent had failed to search particular areas.  The federal magistrate held that the Tribunal had considered the evidence before it and concluded that all reasonable steps had been taken to locate the relevant documents.  Her Honour was unable to go behind that finding unless there was error of law leading to it.  The appellant had not demonstrated any error of law. 

28                        In an addendum to her reasons for judgment, the federal magistrate dealt with two emails, sent by the appellant to her Honour’s associate, after the hearing of the appeal.  Her Honour was unaware of the existence of those two emails until some time after her associate had received them.  Her Honour then caused her associate to advise the appellant that the court could not look at the emails unless leave to rely on post-hearing submissions were granted.  The appellant then filed an application seeking leave to rely on those submissions.  Her Honour rejected that application, principally on the basis that the submissions dealt with matters that the appellant could and should have been aware of prior to the commencement of the hearing of the appeal.  He could have made submissions about them at the hearing. 

The case on appeal

29                        In his amended notice of appeal to this Court, the appellant has made detailed complaints about the reasoning of the Federal Magistrates Court.  To a large extent, he has been able to do so because of the manner in which the federal magistrate dealt with the questions raised in the appeal dealt with by her.  Her Honour did not insist strictly upon addressing only questions of law, but expressed conclusions about the appropriateness of the Tribunal making the findings that it made on various issues.  This approach was no doubt well-intentioned.  It was no doubt the hope of the federal magistrate that her view would assist in satisfying the appellant that the Tribunal had dealt with his case properly.  Instead, the approach has formed the basis of the appeal that the appellant has made, by encouraging him to challenge the federal magistrate’s reasons in almost all respects.

30                        In making that kind of appeal, however, the appellant has not grappled with the crucial problem confronting him in this proceeding.  That problem is that the Tribunal’s ultimate finding was that all reasonable steps had been taken, and that further documents sought by the appellant either did not exist or could not be found.  If the appellant could not and cannot have this finding overturned on the basis of error of law, his appeal heard by the Federal Magistrates Court could not succeed and his appeal to this Court cannot succeed.  It does not matter that the federal magistrate expressed views about the facts.  It does not matter whether those views were right or wrong.  What matters is whether the appellant can succeed on a question of law in relation to the Tribunal’s decision.

31                        For this reason, a number of grounds of appeal in the appellant’s notice of appeal must be disregarded.  Ground 1.1 challenged a finding by the Tribunal that, with one or two exceptions, all documents wanted by the appellant had been provided to him.  Ground 2 suggested that the federal magistrate had made assumptions not consistent with the facts or the evidence in the case.  The first of these assumptions, in ground 2.1, concerned the inadequacies of the respondent’s document storage and retrieval system in the past.  The second, in ground 2.2, was the assumption that the PAB file held by Mr Atkins had been provided to the appellant as part of the legal file.  Ground 3.2 was concerned with the manner in which the appellant alleged that the respondent had compiled the files made available to him and with what searches had and had not been made and what documents had and had not been produced.  Ground 3.3 suggested that there must have been fraud on the part of the respondent, because documents had been released selectively, mislaid or even destroyed in order to compile the files that were released.  Ground 3.4 contained an allegation that certain specified source files could have been released.  Ground 3.5 asserted that the Federal Magistrates Court should have considered the steps that were not taken as well as the steps that were taken.  In ground 5, the appellant attempted to reargue the question of misinterpretation of a record of a telephone conversation.  In ground 6, the appellant again sought to argue directly the adequacy of the searches made by the respondent.  Ground 8 again sought to agitate questions about the manner in which the Tribunal had found, or failed to find, facts as the appellant would have wished it to find them.  Ground 9 concerned an alleged failure of the respondent to follow an audit trail in relation to a particular file.  Ground 10 suggested that there was no evidence from the respondent that reasonable steps were taken to find a number of files from areas nominated by the appellant.  Ground 11 raised again the question of compilation of files from other source files and raised matters concerning a conversation between two officers of the respondent.  Ground 12 challenged the federal magistrate’s statement that errors and oversights earlier in the investigative process were of no significance if they have been corrected by the time of the Tribunal’s decision, by asserting that not all errors and oversights had been corrected.  Ground 13 constituted a detailed argument in support of the proposition that no search had been done for several specific source files.  Ground 14 raised again the allegation that there was a lack of evidence about searches on the part of the respondent.  All of these grounds can be disregarded.  They raise matters on which the appellant would not have been entitled to succeed in the Federal Magistrates Court and on which he is not entitled to succeed in this Court.  The appeal heard by the Federal Magistrates Court, and the appeal to this Court, are limited to questions of law.  Any question whether the Tribunal or the federal magistrate mistook the facts, and any question whether there might be searches that the respondent could have undertaken or could now undertake, are not questions of law.

32                        In ground 1.2 of his amended notice of appeal to this Court, the appellant challenged the federal magistrate’s conclusion that the Tribunal had understood the nature of the task it was required to perform.  The appellant said that the Tribunal had merely paraphrased part of what Finn J had said and had merely cited another passage from his Honour’s judgment.  The appellant asserted that this was not indicative that the Tribunal had informed itself of the task it was required to perform.  He pointed to a passage in the Tribunal’s reasons, at [104], in which the Tribunal appeared to justify its approach in its earlier decision, by referring to its use of the word “exhaustive”.  The appellant characterised the Tribunal as defiant, unrepentant or recalcitrant, and said that it had failed to appreciate the significance of the word “all” in s 24A of the FOI Act.  The appellant also pointed to the Tribunal’s description, recorded in the transcript of the Tribunal hearing, of Finn J’s finding as to the error of law as being the difference between the Tribunal’s description “exhaustive attempts” and the wording of s 24A of the FOI Act, “all reasonable steps”.  The appellant accused the Tribunal not only of a wrong understanding about the error of law but of a closed mind on the issue.  He alleged that the Tribunal chose not to evaluate critically whether all reasonable steps had been taken, but to focus on whether any more files could be found.  The appellant also criticised the Tribunal for paying scant heed to Finn J’s statement that reasons are not required to be given for accessing personal files.  He said that he had been asked by the Tribunal at the second hearing for his reasons for wanting to have copies of his personal files to be filed away at home.

33                        It is not legitimate for an appeal court to reach conclusions about the reasons behind a judgment or decision from which an appeal is brought by reference to exchanges in the course of the hearing of the proceeding in which the judgment or decision has been given.  In the course of hearing a case, a judge or decision-maker will often ask questions or make statements, in order to seek a response, or for other reasons.  If what is suggested in those questions or statements does not surface again in the reasons for judgment or reasons for decision, it is safe to assume that what was said in the course of the hearing is not part of the reasoning underlying the judgment or decision.  This is an important principle.  The judicial process, and the administrative decision-making process, are not to be undermined by the conduct of minute searches of the transcript for something that might be said to disclose a “real” reason about which the express reasons are silent.  A judgment or decision stands or falls by the reasons that are given to support it. 

34                        The Tribunal’s characterisation of its error as a failure to use the precise words of s 24A of the FOI Act, but as the use of a synonym for those words, whether expressed in the Tribunal’s reasons or in transcript, does not reveal an error of approach on the part of the Tribunal.  Still less does it reveal a closed mind about the Tribunal’s task.  It does not demonstrate defiance, lack of repentance or recalcitrance on the part of the Tribunal.  The Tribunal’s lengthy reasons for decision reveal that it had a very clear understanding of the task it was required to perform.  It was required to determine whether all reasonable steps had been taken by the respondent, and whether the documents to which access was sought could not be found or did not exist.  After a full examination of the evidence before it, the Tribunal reached the conclusion that all reasonable steps had been taken and that the documents sought either could not be found or did not exist.  Its approach cannot be faulted.  As I have said, its conclusion on this factual issue is fatal to the appellant’s case.  The appellant’s attempt to characterise the issue as one of either critical evaluation of the steps taken or focus on whether more files could be found constitutes a false dichotomy.  The Tribunal had to ask itself whether all reasonable steps had been taken to find the documents (s 24A(a)).  This necessitated evaluation of the steps taken, an evaluation carried out by the Tribunal.  The Tribunal also had to ask itself whether any more files could be found (s 24A(b)(i)).  This process necessitated looking at the documents that had been produced, which the Tribunal did.  The Tribunal performed both of the tasks it was required to perform to reach a conclusion under s 24A.

35                        It is correct to say that the reasons for seeking access to documents under the FOI Act are irrelevant to a determination of a dispute about whether access should be given.  Section 11(2) of the FOI Act says as much.  There is nothing in the Tribunal’s reasons for decision to suggest that the Tribunal regarded the appellant’s reasons for seeking access to the respondent’s files about him as relevant to the outcome of his request.  If, in the course of the hearing, the Tribunal asks him about his reasons, it obviously did not approach the task of reaching its decision at the end of the process as involving any consideration of those reasons.

36                        The federal magistrate was correct to reject the appellant’s argument that the Tribunal had misunderstood the task it had to perform.  Her Honour was also correct to reject the argument that the way in which the Tribunal described its earlier error indicated that it had a closed mind and led to an apprehension of bias.  Her Honour also was correct to reject the submission that the Tribunal failed to evaluate critically whether all reasonable steps had been taken by the respondent to find the files.  The question of the appellant’s reasons for his request does not appear to have surfaced in the Federal Magistrates Court.  If it did not, leave would be required for it to be argued in this Court.  Leave would be refused because the argument could not succeed. 

37                        In ground 2.2, the appellant raised the argument that he should have been entitled to call Mr Atkins to give evidence in the course of the Tribunal hearing.  The argument that the appellant ought to have been permitted to call Mr Atkins constituted a significant part of the argument on appeal to this Court, in support of the proposition that the Tribunal had denied the appellant procedural fairness by not permitting him to put the case that he wanted to put.  From [46] of the Tribunal’s reasons for decision, it appears that a summons had been issued to Mr Atkins to attend and give evidence, but had not been served on him.  The Tribunal recorded in that paragraph that the appellant had spoken to Mr Atkins by telephone, prior to the issue of the summons.  The appellant reported that, in this conversation, Mr Atkins said he had never been asked where the appellant’s files were.  At [47], the Tribunal said that this evidence (among other items of oral evidence) was not relevant to the question that the Tribunal had to determine.  It is clear that the Tribunal was prepared to accept that, if called to give evidence, Mr Atkins would have said that he had never been asked where the appellant’s files were.  The fact that the Tribunal was prepared to accept that Mr Atkins would have given that evidence is significant.  It means that the Tribunal did not deny the appellant the opportunity to put that item of evidence before it.  That being so, it is of no significance that the evidence itself was not given by Mr Atkins personally.  By s 33(1)(c) of the AAT Act, the Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate.  This provision empowered the Tribunal to accept through the appellant what would otherwise have been hearsay evidence.  Contrary to the submission of the appellant, through his son who addressed the Court on the hearing of this appeal, it was not a question whether Mr Atkins might have given more emphasis to the evidence by giving it personally.  The Tribunal was prepared to accept that he would have given evidence in the terms stated.  The question for the Tribunal was the consequence of the evidence it accepted.  The Tribunal did not regard it as relevant to the question it had to determine.  The involvement of Mr Atkins was a very long time before the Tribunal was considering the matter.  The Tribunal was focusing instead on the situation as it was at the time of the Tribunal’s hearing and decision.  That was what the Tribunal was bound to do.

38                        The Tribunal did not deny the appellant procedural fairness by refusing to take on the function of serving the summons on Mr Atkins itself (not something the Tribunal would normally undertake) or by revoking the summons.  The appellant attempted to argue on this appeal, by reference to s 40(1C) of the AAT Act, that the Tribunal did not have the power to revoke the summons.  Section 40(1C) provides:

A person (other than a presidential member, a senior member or an authorised member) who, under subsection (1A), may summon a person to appear before the Tribunal must not refuse a request to do so unless the refusal is authorised by a presidential member, a senior member or an authorised member.

Even if it be assumed that this subsection covers the revocation of a summons previously issued pursuant to s 40(1A) of the AAT Act, there is nothing in the present case to indicate that the member constituting the Tribunal was not herself an authorised member or, if not, that the revocation of the summons was not authorised by a presidential member, a senior member or an authorised member.  Even if the revocation of the summons were invalid, this would still not amount to a denial of procedural fairness to the appellant.  The summons remained unserved on Mr Atkins.  The Tribunal was not obliged to undertake service itself.  The Tribunal accepted the evidence it was told Mr Atkins would give, if called.  Any error in revoking the summons did not affect the Tribunal’s decision.

39                        In ground 3, the appellant asserted that the Federal Magistrates Court should have concerned itself with how decisions were made by the respondent, and asked itself whether those decisions were made in accordance with the law in the context of s 24A of the FOI Act.  In particular, in ground 3.1, the appellant referred to what Finn J said in Chu at [6].  Although the appellant did not refer to the entirety of that paragraph, it is instructive to set out what his Honour said:

Statutory construction, though, is not an exercise in literalism to be engaged in without regard to the text and purpose(s) of a statute and to the context of the provision in question.  Given that s 24A is a provision with a known provenance, the relevant principle to be applied was that stated by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 in terms later reiterated in the majority judgment of the High Court in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 at 280-281.  In CIC Insurance their Honours said (at 408):

It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure.  Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.  Instances of general words in a statute being so constrained by their context are numerous.  In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance.  Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

From this passage, the appellant picked out the reference to what McHugh JA had said in Isherwood.  He contended that the Federal Magistrates Court should have informed itself as to what mischief the word “all” is intended to cure in s 24A of the FOI Act.  It was then required to inform itself on whether any “mischief” had in fact existed or had taken place in the steps taken by the respondent in the present case. 

40                        This argument involves a misunderstanding of what was meant by the reference to “mischief” in the quote from McHugh JA.  As the whole of [6] shows, Finn J was talking about the proper approach to the construction of statutes.  A principle that can be used in relation to the construction of statutes is to identify the purpose of a legislative provision by ascertaining what Parliament regarded as the “mischief” the existence of which demonstrated the need for the legislative provision.  If the nature of the mischief can be ascertained, then the legislative provision can be interpreted more accurately by reference to its purpose of doing away with the mischief.  The principle is sometimes useful in statutory interpretation, but is certainly not of universal application.  There are many statutory provisions not designed to overcome any identifiable mischief.  When it is used, the principle is only a step towards ascertaining the legislative purpose, so that the Court can construe the relevant provision in accordance with that purpose.

41                        The principle certainly does not operate by requiring a court to identify whether something that might be described as a “mischief” has occurred in a particular case and to construe the relevant statutory provision by reference to that particular mischief.  If either the Tribunal or the federal magistrate in the present case had given attention to the question whether something that might be described as a “mischief” had occurred, the Tribunal or the federal magistrate would have been in error.  The task for the Tribunal was to determine whether the respondent had taken all reasonable steps to find the documents requested, and whether such documents did not exist or could not be found.  The task of the federal magistrate was to determine any question of law properly arising from the Tribunal’s decision.  To search for any “mischief” in the facts of the case would have been a distraction from either process. 

42                        Ground 4 of the notice of appeal focused on the way in which the Federal Magistrates Court had dealt with the appellant’s attempt to make further submissions after the hearing of the appeal by that court.  The federal magistrate dealt with this attempt in an addendum to her Honour’s reasons for judgment.  At [94]-[95], her Honour said:

After the conclusion of the hearing, the applicant sent to my associate two emails which purported to be post hearing submissions.  It did not come to my attention for some weeks that the applicant had purported to file post hearing submissions.  When I learned of them, I asked my associate to email the applicant, advising him that post hearing submissions could not be received by the court without leave.  I did not at that stage read the purported post hearing submissions.  The applicant eventually decided to file an application seeking leave to rely on the purported post hearing submissions.  The respondent filed material in response to that application, which was heard on 12 August 2008.

The applicant explained to the court in an affidavit that he had not put forward at the hearing the matters contained in his purported post hearing submissions because it was a long day and he was tired, particularly because of his age and a hearing problem.  He also said that the submissions merely highlighted aspects of the evidence, which the court should have been aware of in any event.

At [96]-[97], her Honour cited Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 257-258 per Mason J and Stockdale v Alesios [1999] 3 VR 169.  Both these cases are authority for the proposition that a court cannot receive further submissions after a hearing without granting leave for such submissions.  In the latter case at 179, Phillips JA spoke of certain exceptions to that general principle, “such as an unexpected change in the position of the parties which bears upon the disposition of the appeal or the discovery after argument concludes of relevant legislation or some further decision of authority to which the court should be referred.”

43                        At [98], the federal magistrate said:

None of the exceptions mentioned by Phillips JA applies in this case.  Nor is there any other circumstance that would warrant the reception of the applicant’s purported post hearing submissions.  Having now read them, it is clear that they deal with matters that the applicant could and should have been aware of prior to the commencement of the hearing.  He should have made his submissions about them at the hearing.  I refuse the applicant leave to rely on the post hearing submissions.

44                        According to the notice of appeal to this Court, the two emails concerned the alleged use by the respondent of documents from source files to compile the files that had been made available to him.  The emails therefore concern the facts of the case, which were not a matter for the Federal Magistrates Court.  The appellant complained about the delay prior to informing him that he should seek leave to rely on post-hearing submissions.  He asked the rhetorical question, “Why call for submissions which wouldn’t even be looked at?”  The delay is explained by the federal magistrate in [94] of her Honour’s reasons for judgment.  She was unaware of the emails.  The appellant’s rhetorical question misses the point.  The federal magistrate was not calling for submissions.  The court was informing the appellant that he could not rely on his post-hearing submissions without leave and seeking information as to whether he would apply for leave.  At the time of doing this, obviously the federal magistrate had not made a decision not to look at the submissions.  If the appellant had been successful in his application for leave, her Honour would no doubt have taken the submissions into account, if she could.

45                        The appellant then drew a comparison between the Federal Magistrates Court’s refusal to receive the appellant’s post-hearing submissions and the Tribunal’s action, after its hearing, of communicating with the respondent for the purpose of asking whether it had made particular searches.  The two situations are entirely different.  The law governing the Federal Magistrates Court is stated accurately in the two authorities cited by the federal magistrate at [96]-[97].  The Court could not take it upon itself to receive post-hearing submissions.  It could only grant or refuse leave to make such submissions if such leave were sought.  By contrast, the Tribunal’s powers were more flexible.  By s 33(1)(c) of the AAT Act, the Tribunal could inform itself on any matter in such manner as it thought appropriate.  In order to make the correct or preferable decision, the Tribunal could seek information after the close of the hearing, subject to affording the appellant procedural fairness.  The Tribunal afforded the appellant procedural fairness by ensuring that he had a copy of the Tribunal’s letter to the respondent, requesting information about a particular line of searches, and the respondent’s reply, and by allowing a suitable time to elapse before publishing its decision, so that the appellant could make any submissions he wished about the additional information. 

46                        The refusal of the Federal Magistrates Court to receive the appellant’s post-hearing submissions was proper.  It did not disadvantage the appellant, in that he had been given a full opportunity to make whatever submissions he wished in the course of the hearing.  It did not deny him procedural fairness.  It was not inconsistent with the Tribunal seeking further information from the respondent after the Tribunal’s hearing. 

47                        Ground 7 of the notice of appeal raised the question whether the Tribunal had evaluated critically the steps taken by the respondent, rather than focusing on whether there were more files that could be discovered.  In this ground, the appellant argued that the federal magistrate had not made it clear whether the court disapproved the approach taken by the Tribunal.  Although her Honour said at [76]:

It is true that the Tribunal observed that the only documents that the applicant sought that he had not received were his annual performance reports and an entry in his occupational health medical file concerning the events of 2 September 1994.

48                        At [77], her Honour said:

However, I am not persuaded that the Tribunal failed to critically evaluate the steps taken by Telstra.  The Tribunal’s critical evaluation of the steps taken by Telstra is demonstrated by its request after the hearing that Telstra check the Adelaide site to see if any of the required documents were held there.  This request shows that the Tribunal actively considered whether there were any gaps in the investigative process undertaken by Telstra.  The Tribunal identified such a gap and alerted Telstra to it.  As it happened, no relevant documents were found at the Adelaide site.

There can be no doubt that, in this passage, the Federal Magistrates Court made it perfectly clear that it approved the Tribunal’s approach in its evaluation of the steps taken by the respondent. 

49                        The appellant then raised again the issue of his post-hearing submissions and the Tribunal’s post-hearing request for further information.  I have already dealt with this matter.  The appellant then suggested that his post-hearing submissions to the Federal Magistrates Court did nothing more than to expose gaps in the steps taken by Telstra.  He contended that it would not be prudent or fair to him to have those gaps ignored or overlooked.  The answer to this is that the question whether there were gaps in the searches undertaken by the respondent was a question of fact for the Tribunal, not a question of law for the Federal Magistrates Court.  The Tribunal had found that all reasonable steps had been taken by the respondent.  To the extent that there could be said to have been any gaps in the respondent’s searches, the Tribunal was of the view that it would not be reasonable to require the respondent to fill those gaps.  That was not a question on which the Federal Magistrates Court could have overturned the Tribunal’s decision.  It was not a question of law.  As I have said in [8], the appellant could not succeed in the Federal Magistrates Court by claiming that there were further searches that the respondent could have undertaken, and arguing that it would have been reasonable for the respondent to do so.  Nor can he succeed in this Court by such an argument.  Those propositions do not involve questions of law.

Conclusion

50                        For the reasons I have given, the appellant’s appeal must fail.  It must be dismissed.  No reason appears, and none was advanced, why the usual principle, that costs follow the event, should not be applied.  The appellant will therefore be ordered to pay the respondent’s costs of the appeal.

Associate:

Dated:         26 November 2009