FEDERAL COURT OF AUSTRALIA

O’Donoghue v Australian Information Commissioner (No 3) [2012] FCA 1244

THE COURT ORDERS THAT:

1.    The oral application for an adjournment be refused.

2.    The oral application to state a case to the High Court of Australia be refused.

3.    The application dated 7 August 2012 be dismissed.

4.    The applicant pay the costs of the second respondent, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1    The second respondent, the Migration Review Tribunal (the Tribunal), by application dated 18 September 2012, applies pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) for the application filed by Mr O’Donoghue, on 7 August 2012, to be dismissed.

2    Previously the applicant had sought to have me recuse myself from hearing his substantive application on the grounds of bias. This was unsuccessful: O’Donoghue v Australian Information Commissioner [2012] FCA 995. Then on 18 October 2012, the applicant unsuccessfully applied for an adjournment of the dismissal application: O’Donoghue v Australian Information Commissioner (No 2) [2012] FCA 1152.

3    At the outset of the hearing the applicant, without any prior notice either to the Court or, it appears, to the Tribunal, renewed his application for an adjournment as he wanted the Court to state a case to the High Court “seeking the inclusion or addressing the issue of the absence of a bill of rights in Australian constitutional law, particularly given that Australia now has a seat at the United Nations …”. He sought support for this by reference to the Charter of Human Rights and Responsibilities Act 2006 (Vic). I ruled that there was no basis for stating such a case based on the grounds postulated by the applicant. He then submitted that he should be granted the adjournment on the grounds that I was prejudiced and biased against him. As I pointed out to him in the course of argument, disagreement with his submissions does not amount to bias. I refused his renewed application for an adjournment.

Factual background

4    The applicant made a Freedom of Information (FOI) request to the Tribunal on 11 April 2012.

5    A decision in respect of this request was made on 10 May 2012 ("the FOI decision"). Some documents were released in full. Other documents were exempted in part and in full on the basis that they contained material which was subject to legal professional privilege or which disclosed personal information.

6    The applicant applied, by letter received by the Tribunal on 5 June 2012, for an internal review of the FOI decision. The Tribunal was required to make an internal review decision within 30 days of receipt of the request. The 30 day period expired on 5 July 2012 without a decision on the application for internal review.

7    On 6 July 2012, the Tribunal applied to the first respondent (the Commissioner) for an extension of time to make the internal review decision, and on 11 July 2012 the Commissioner granted an extension of time to 13 July 2012 for the Tribunal to make a decision on the application for an internal review.

8    The Tribunal made an internal review decision on 12 July 2012, affirming the primary decision.

The proceedings

9    On 7 August 2012, the applicant commenced proceedings in this Court seeking a "[r]eview of the decision of the 1st and 2nd named Respondents made 06 July 2012 to grant an extension of time to the 2nd named respondent under S54 of the Freedom of Information Act 2982 (sic)". The basis for bringing the proceedings in this Court was not stated. The Commissioner filed a submitting notice on 3 September 2012. The Tribunal accepts that the matter is properly before the Court either under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or s 39B of the Judiciary Act 1903 (Cth).

10    The applicant claims that "[t]he 1st respondent unilaterally granted an extension of time to the 2nd respondent without consent or consultation and without just cause".

11    The grounds stated by the applicant are that:

(1)    The decision made by the first respondent on 06 July 2012 was made without my knowledge or consent.

(2)    Rules of Due Process, Natural Justice and Procedural Fairness were not adhered to by the 1st or the 2nd named respondents.

(3)    The decision of the 1st respondent is in ultra vires its powers and is void.

(4)    The 1st and the 2nd respondents have demonstrated actual and perceived bias contrary to law.

(5)    The conduct of the first and second respondents will result in a miscarriage of Justice.

12    The applicant principally seeks “an order setting aside the decisions of the 1st and the 2nd Respondents” as well as “[a] declaration that the 2nd Respondent has breached its Statutory duties and obligations under the Freedom of Information Act 1982”.

The legislative scheme

13    Where an access refusal decision, as defined in s 53A of the Freedom of Information Act 1982 (Cth) (the Act), has been made, an application for internal review of that decision may be made by the applicant pursuant to s 54 of the Act. Such application, in writing, must be made, relevantly, within 30 days, or such further period as the agency allows, after the day the decision is notified to the applicant for internal review: s 54B(1)(a) of the Act.

14    The person charged with the conduct of the review must make a fresh decision within 30 days after the day on which the application for internal review was received by, or on behalf of, the relevant agency: s 54C(3) of the Act.

15    Section 54D of the Act deals, relevantly, with the deemed affirmation of an access refusal decision. This section provides:

(1)    This section applies if:

    (a)    an application for internal review has been made to an agency; and

    (b)    the period (the initial decision period) of 30 days (as mentioned in subsection 54C(3)) has ended since the day the application for internal review was received by the agency; and

    (c)    notice of a decision on the application has not been received by the internal review applicant.

(2)    Subject to this section:

(a)    the principal officer of the agency is taken to have made a decision personally affirming the original decision on the last day of the initial decision period; and

(b)    notice of the decision is taken to have been given under section 26 to the internal review applicant on the same day.

Agency may apply for further time

(3)    However, the agency may apply, in writing, to the Information Commissioner for further time to deal with the application.

(4)     The Information Commissioner may allow further time considered appropriate by the Information Commissioner for the agency to deal with the application.

    . . .

(6)    Subsection (2) (deemed affirmation) does not apply, and is taken never to have applied, if the agency:

(a)    makes a decision on the application within the further time allowed; and

(b)    complies with any condition imposed under subsection (5).

. . .

Summary dismissal

16    Section 31A of the FCA Act provides as follows:

31A Summary judgment

(1)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is prosecuting the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)     This section does not limit any powers that the Court has apart from this section.

17    Section 31A “‘lower[s] the bar’ for summary dismissal”: Priestley v Godwin (No 3) (2008) 172 FCR 139 at [65].

18    As French CJ and Gummow J said at [25] in Spencer v Commonwealth of Australia (2010) 241 CLR 118:

[s]ection 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact.

19    The Tribunal submits that the application lacks merit, is futile and is frivolous.

20    The applicant did not provide an outline of written submissions. His oral submissions were, in effect, that as the 30 day period provided in s 54C(3) and referred to in s 54D(1)(b) of the Act had ended, time for the Tribunal to make a decision on his application for an internal review could not be extended.

Consideration

21    The actual position is the very opposite of that contended for by the applicant. The power vested in the Commissioner by s 54D(4) of the Act is predicated upon their being no notice of a decision on the internal review being received by the applicant within the 30 day period: s 54D(1) of the Act. This, on the uncontentious facts, is the case here. No such notice had been received by the applicant by 5 July 2012. An entitlement in the Tribunal to request the Commissioner to extend the time for the Tribunal to deal with the application for internal review was thereby enlivened. It sought that extension the following day, 6 July 2012, pursuant to s 54D(3) of the Act. Time was then extended by the Commissioner: s 54D(4) of the Act.

22    Section 54D of the Act does not specify any criteria the Commissioner must consider. It is sufficient if the Commissioner considers that the time requested is appropriate.

23    The Commissioner, in granting the request, took into account that the extension sought was a short one and that it represented the fastest means of providing the applicant with a decision, other than a deemed decision. Whilst the application states that the decision to extend time was made “without just cause” no submissions were made in support of this claim, unless one views the applicant’s submissions concerning the effect of the 30 day period ending with no decision on the internal review application under that rubric. The applicant’s stated claim that he was denied procedural fairness is also without merit. It is correct that he was not given an opportunity to make submissions on the Tribunal’s request for an extension of time before the extension was granted. However, there is no obligation upon the Commissioner to refer the request for an extension of time to an applicant for internal review. That person’s consent to an extension of time of this kind is not required.

24    I have reached this conclusion for two reasons. First, s 54(D) of the Act does not require it in terms nor by necessary implication. Second, this absence is in contrast to the requirement for an applicant’s written consent to an extension of time in relation to the original request: ss 15(5)(b), (6), (8) read together with s 15AA of the Act.

25    The application has no reasonable prospects of being successfully prosecuted by the applicant. Indeed, it is entirely unmeritorious. Section 54D of the Act caters for the very circumstances that occurred here. There was a deemed decision under s 54D(2) of the Act affirming the FOI decision. A request for an extension of time to deal with the application for internal review was made under s 54D(3) of the Act. The Commissioner extended time under s 54D(4) of the Act. The Tribunal made a decision on the application for internal review within the extended time period whereby the deemed affirmation under s 54D(2) of the Act then did not apply: s 54D(6) of the Act.

26    It is unnecessary to consider the other grounds relied upon by the Tribunal in support of its application for dismissal.

27    The application under s 31A FCA Act will be allowed. There will be orders that the application be dismissed and that the applicant pay the costs of the Tribunal, to be taxed if not agreed.

Associate:

Dated:    9 November 2012