FEDERAL COURT OF AUSTRALIA

Hamden v Secretary, Department of Human Services [2013] FCA 3

THE COURT ORDERS THAT:

1.    The name of the respondent be changed to Secretary, Department of Human Services.

2.    The applicant’s application for an extension of time dated 6 August 2012 be refused.

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

REASONS FOR JUDGMENT

Introduction

1    This is an application for an extension of time within which to lodge an application for an order for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). The applicant is Mr Hamden and he seeks an order for review in respect of a decision of the Administrative Appeals Tribunal made on 25 August 2011 in the matter of Hamden v Centrelink [2011] AATA 587. He contends that the Tribunal’s decision should be set aside on the grounds that the procedures that were required by law to be observed in connection with the making of the decision were not observed (ADJR Act s 5(1)(b)) or that the decision was induced or affected by fraud (ADJR Act s 5(1)(g)), or both. In essence, the applicant claims that the respondent, who is the Secretary, Department of Human Services (previously, Centrelink), did not include in the documents it lodged with the Tribunal pursuant to s 37(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) all of the documents which were in its possession or under its control which were relevant to the review of the decision by the Tribunal. The applicant claims that the respondent’s omission was deliberate and that had the documents been included in the documents provided to the Tribunal by the respondent the Tribunal’s decision would, or may well have been, different.

2    The applicant’s application for an extension of time was issued on 6 August 2012. The delay in issuing an application under the ADJR Act is approximately 11 months. Before considering the relevant factors in terms of the application it is necessary to set out the facts. Most of the summary of facts which follows is taken from the Tribunal’s decision and is not in dispute.

The Facts

3    On 10 September 2010 the applicant made a request for access to certain documents of the respondent pursuant to s 11(1) of the Freedom of Information Act 1982 (Cth) (“FOI Act”). The documents to which the applicant sought access were described by him in the following way:

All emails sent by Bronwyn Szabados to Stephen Marsh for the period 3 May 2007 to 11 May 2007 inclusive, including ‘pls ignore previous attachment sent to you earlier today – this attachment supersedes’, refer attached copy of email.

All emails sent by Stephen Marsh to Bronwyn Szabados for the period 3 May 2007 to 11 May 2007 inclusive.

Evidence via affidavit lodged with the Federal Court in May 2010 indicates that these emails are available, refer attached copies.

4    An Authorised Freedom of Information Officer with the respondent, Ms Margaret Scanlon, made a decision on the applicant’s request on 17 December 2010. Relevantly for present purposes, she decided to refuse access to “original” emails sent between Stephen Marsh and Bronwyn Szabados in the period 3 May 2007 to 11 May 2007 and stored/held on Centrelink’s Lotus Notes electronic mail system. Ms Scanlon wrote to the applicant by letter dated 17 December 2010, giving reasons and other particulars of her decision (FOI Act s 26). She found that all reasonable steps had been taken to find the documents requested and that the requested documents did not exist within s 24A of the FOI Act.

5    On 21 December 2010 the applicant sought an internal review of the decision (FOI Act s 54), specifically requesting a review of the decision in relation to “copy of emails sent between Stephen Marsh and Bronwyn Szabados using Centrelink’s email system during the period 3 May 2007 to 11 May 2007”. On 7 February 2011 the Review Officer with the respondent advised the applicant that she had refused his request under s 24A of the FOI Act.

6    Subsection 24A(1) of the FOI Act is in the following terms:

24A    Requests may be refused if documents cannot be found, do not exist or have not been received

Document lost or non-existent

(1)    An agency or Minister may refuse a request for access to a document if:

(a)    all reasonable steps have been taken to find the document; and

(b)    the agency or Minister is satisfied that the document:

(i)    is in the agency’s or Minister’s possession but cannot be found; or

(ii)    does not exist.

7    In her decision, the Review Officer identified the matters she had regard to and the reasons for her decision.

8    On 10 February 2011 Ms Scanlon wrote to the applicant clarifying aspects of the decision that she had made on 17 December 2010.

9    On 21 January 2011 the applicant made an application for review of the decision under the FOI Act by the Tribunal.

10    Subs 37(1) of the AAT Act provides as follows:

(1)    Decision-maker must lodge statement of reasons and relevant documents

    Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:

(a)    a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and

(b)    every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.

11    On 11 February 2011 the respondent purported to comply with the obligation in this subsection by lodging with the Tribunal a book of documents (“T Documents”). The T Documents were sent to the applicant.

12    Document T 20 at page 77 of the T Documents is an email from Ms Lisa Kearney to Ms Scanlon dated 17 November 2010 and it refers to a “chain of emails” between Mr Luke Holland, Mr Steve Kirby and herself. Ms Kearney is a member of the Portfolio Enterprise Agreement Team of the respondent. Mr Holland is a solicitor and Mr Kirby is described in the email as a business manager with the respondent.

13    On or about 23 March 2011, the applicant wrote to the respondent in the following terms:

Dear Greg,

it may be helpful in your investigations to contact Steve Kirby and others, and obtain “the chain of emails between myself, Luke, and Steve Kirby should all be on the litigation file …………… etc.”

Details of the above are taken from T -20 pg 77 on T documents. I wonder why this information was not followed up by FOI as the email is dated 17 November 2010.

Yours sincerely,

David Hamden.

14    The respondent responded on the same day in the following terms:

Dear Mr Hamden,

Thank you very much for your email and for drawing to my attention page 77 of the T-documents.

Please do not hesitate to contact me should you wish to discuss this matter.

Yours sincerely,

Greg Camilos

Acting Deputy General Counsel

Advocacy Branch Centrelink

DHS Legal Services Division

15    The Tribunal held a hearing on 7 July 2011 and the T Documents were accepted into evidence. The applicant gave evidence and the Tribunal summarised his evidence and his claims as follows:

Mr Hamden is seeking certain “original” emails that passed between Centrelink officers, Ms Bronwyn Szabados and Mr Stephen Marsh, during the period 3 May 2007 to 11 May 2007. He asserted that these electronic communications, although more than 87 days old, were held by Centrelink in its data records and are retrievable. An attempt had been made to locate the electronic records, which he said were still available on the Centrelink mainframe in its Lotus Notes electronic mail system. If the emails were not readily available, the documents were Commonwealth records and the searches that had been conducted by Centrelink were not sufficiently thorough. He said that email messages created using Australian Government systems were Commonwealth records and had to be managed in accordance with the Archives Act 1983.

16    The respondent called evidence from a Mr Christopher Hill, an officer employed by it in the position of Technical Manager, End User Communication Team. The Tribunal summarised Mr Hill’s evidence as follows:

It was Mr Hill’s evidence that he had been employed by Centrelink for four years and currently held the position of Technical Manager in the End User Communication Team. The handling of electronic email and of changes to email infrastructure fell within the scope of the team. He said that, in Centrelink, emails older than 45 days would be purged from a user’s inbox. In the Centrelink network, after an email arrived in a user’s inbox, it was backed up each night. It would remain on the back-up server from the time it arrived in the user’s inbox and for six weeks after the email was removed. Emails in a user’s inbox would be stored on disc then purged, backed-up and then after six weeks would be purged again. If emails were not purged after six weeks, greater storage would be required. He explained further that Centrelink had recently introduced a capability to allow users to retrieve email. The retention period for this was eight years, but would only date back to the time the system was installed in January 2011.

17    The Tribunal referred to various sections of the FOI Act, including ss 3, 4(1), 11(1), and 24A. It formulated the questions it had to decide as follows:

1.    Whether reasonable steps have been taken to find the documents requested by the applicant, in particular, whether the documents exist in original (that is, electronic) form.

2.    Whether the Tribunal is satisfied that the documents requested by the applicant cannot be found or do not exist.

18    Those questions reflect the elements in subs 24A(1) of the FOI Act.

19    After considering the evidence the Tribunal made the following important findings. First, it found that all reasonable steps have been taken to find the “original” emails sent between Ms Szabados and Mr Marsh in the period 3 May 2007 to 11 May 2007 that were stored/held by the respondent on its Lotus Notes electronic mail system (email). Secondly, it found that it was satisfied that the original emails no longer exist. Finally, the Tribunal said that with respect to a Word document that was said to be a “previous attachment” to an email sent by Ms Szabados to Mr Marsh during the period 3 May 2007 to 11 May 2007, the Tribunal was not satisfied that all reasonable steps to find the document had been taken. The Tribunal expressed its conclusions in the following way:

25.    I am satisfied that all reasonable steps have been taken to find the “original” emails sent between Ms Szabados and Mr Marsh in the period 3 May 2007 to 11 May 2007 that were stored/held on Centrelink’s Lotus Notes electronic mail system (email). As was said by Mr Hill in his evidence (which I have no reason to doubt), the longest period an internal email can exist is 87 days – 45 days in an inbox and a further 6 weeks on the backup server. I am satisfied that the “original” emails Mr Hamden is seeking no longer exist.

26.    In relation to the Word document, which is the “superseded” attachment referred to by Mr Hamden in his Freedom of Information application (Exhibit R1, T32), it would appear that no (or no reasonable) steps have been taken to locate the attachment. It may be that it cannot be found or, like the original email to which it was attached, it no longer exists. Nevertheless, I find that, in order to satisfy s 24A(a) of the Act, it is appropriate that Centrelink take steps to determine whether a Word document that was the “superseded” attachment can be found or whether, like the email to which it was attached, it has been purged from the user’s inbox and the backup server and no longer exists.

DECISION

27.    The Tribunal varies the decision under review to the extent indicated in paragraph 26 of these reasons.

20    The Tribunal made its decision on 25 August 2011.

21    On 23 September 2011, the respondent wrote to the applicant and advised him that it had searched for the Word document referred to in paragraph 26 of the Tribunal’s reasons. The author of the letter said:

In conducting a search for the word document referred to in the AAT decision, I contacted the author who was able to provide me with the final version of the document as this was still in existence electronically on the computer system separately from the email to which it had been attached before being sent (the second email).

The author advised that the original (“superseded”) document which was attached to the initial email (the first email) had been amended before it was attached to the second email in its final version, and that this final version of the document was the only version still in existence on the computer system because the original (“superseded”) document had been overwritten and converted into the final version of the document. In other words, the original (“superseded”) version of document ceased to exist once the amendments were made.

Further, as the first email no longer exists, the original (“superseded”) document which was attached to the first email also no longer exists.

On 5 August 2011, in response to a subsequent FOI request, I provided you with access to the final version of the document which was the attachment to an email sent by Bronwyn Szabados to Stephen Marsh (i.e. the second email).

22    On 24 October 2011 and again on 2 February 2012 the respondent wrote to the applicant essentially reiterating the advice it had previously given him.

23    On 18 October 2011 the applicant issued an application against the respondent in this Court seeking an order in the nature of mandamus requiring the respondent to comply with the Tribunal’s order.

24    On 7 May 2012 the applicant’s application was dismissed: Hamden v Campbell (No 2) [2012] FCA 460. The reasons for judgment set out the history of the various proceedings in some detail. The judge refused the order sought by the applicant because he was not satisfied that the respondent had not complied with the Tribunal’s order.

25    On 24 May 2012 the applicant made a further request for access to documents under the FOI Act. He sought access to the chain of emails referred to in Ms Kearney’s email dated 17 November 2010.

26    On 6 July 2012 an Authorised Freedom of Information Officer advised the applicant that his request for access to the “chain of emails” was refused because the documents were exempt from disclosure under s 42 of the FOI Act. That section exempts a document from the obligation to provide access if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

27    It is important to note that there are two “chain of emails”. First, there is the chain of emails between Stephen Marsh and Bronwyn Szabados in the period from 3 May 2007 to 11 May 2007, which was the subject of the applicant’s request under the FOI Act on 10 September 2010. Secondly, there is the chain of emails referred to in Ms Kearney’s email dated 17 November 2010, which was the subject of the applicant’s request under the FOI Act on 24 May 2012. It is this second chain of emails which is presently relevant, although ultimately they are said to be relevant because of their bearing on the Tribunal’s decision with respect to the first chain of emails. I will refer to the former as the 2010 emails and the latter as the 2007 emails.

28    The applicant contends that the 2010 emails should have been included in the T Documents by the respondent. Neither he nor the Tribunal had the documents. They were, he contended, relevant to the review of the decision by the Tribunal within s 37(1) of the AAT Act.

29    Document T 20 consists of three emails. The first email is from Ms Scanlon to a Ms Jillian Turner dated 15 November 2010. It seems that the applicant provided an affidavit of a Mr Luke Holland sworn on 14 May 2010, or part of that affidavit, with his application dated 10 September 2010 under subs 11(1) of the FOI Act. The email is in the following terms:

Jill,

I have finally come to grips with what Mr Hamden’s request is about and the background to it. Attached to his request is a copy of an affidavit by Luke Holland dated 14 May 2010 which goes into the storage of discs holding emails which are archived after 45 days of storage on trash. I don’t know the circumstances whereby Luke Holland made the affidavit but it would seem to be a Centrelink matter. The fact that Mr Hamden provides this with his request for access to emails between Bronwyn Szabados and Stephen Marsh would seem to indicate that he has an expectation that the emails are archived in the manner described in the affidavit and that they are, therefore, retrievable, albeit in a time consuming exercise.

My understanding of the situation regarding emails, from recent dealings with IT on other requests is that the details contained in the affidavit are true only of emails from outside Centrelink. The emails the request refers to are internal emails. It is my understanding that these are simply deleted after 45 days in trash. If not assigned to the trash bin they can be held for much longer on the inbox or the sent box of any or either of the parties communicating. In my case, for example, because I am very slack in the maintenance of my email, I have emails in my inbox going back to Nov 2009.

Do you know the context of the taking of the affidavit by Luke Holland? Given that the applicant has supplied a copy of the affidavit with his request, it is reasonable to assume that he thinks that it applies to the emails he is requesting.

So, it seems that I need to consult with Bronwyn Szabados and Stephen Marsh regarding the request. If they are as slow as I am in the tidying up of their email accounts they may have them in their inboxes.

Can we discuss tomorrow?

Margaret MA SCANLON

30    Ms Turner directed Ms Scanlon to Ms Lisa Kearney, whose email dated 17 November 2010 is in the following terms, relevantly:

The affidavit that Luke prepared was based on a series of information that we got from IT Security. I dealt with Steve Kirby (Business Manager), but I understand that he also sought information from other teams. As I understand it, IT can retrieve emails, both internally and externally sent, but it is a substantial task. While the emails are stored on disks, there is no real system of cataloguing what emails are on particular disks, so it can take a very long time to find particular emails. The task is complicated by the fact that there are only a certain number of licences to use the software that it [sic] required to search the disks, so IT can only put a few people on the job at a time. The information I was given at the time was that it would take a few people, working full time, several weeks to find the email that Mr Hamden was searching for (which is obviously a substantial imposition on the organisation).

The affidavit that Luke prepared was specifically in response to a subpoena that Mr Hamden issued, requesting access to an email sent from Bronwyn Szabados to Steve Marsh in May 2007 (I assume it’s the same one he’s searching for now). The Federal Court judge refused him access during the case, because it was held that he was not entitled to bring new evidence during his appeal (the judge also considered the reasons Luke outlined in his affidavit about the resources that would be required to find the email). Obviously the “new evidence” issue won’t apply under FOI.

The chain of emails between myself, Luke, and Steve Kirby should all be on the litigation file (which should be with Legal, unless Jill has returned it to RMU). Let me know if you’re not able to get them off the hard copy file though – I’ll be up at Centrelink for most of tomorrow morning, if you need me to delve into my email archives (which I can only do from my PC in Legal, not remotely from Medicare!).

(My emphasis.)

31    Ms Kearney refers to an affidavit of Mr Holland. Part of Mr Holland’s affidavit sworn on 14 May 2010 was put before me. It reads, relevantly:

18.    Ms Kearney also informs me that the nature of the Respondent’s IT system is such that emails are archived from the system after 45 days and saved to disc. Ms Kearney has made enquiries with the IT department, who have estimated that it would take approximately two weeks to locate the emails relevant to the request. As the IT department does not employee [sic] casual staff it would not be possible to roster an additional employee in order to reduce the search time frame. A staff member may be asked to perform overtime in order to perform the task, in which case the task may be achieved in approximately six days, however, it would not be possible to have more than one additional employee work overtime to perform this task as there are only a limited number of licences which are required to use the retrieval software. Purchasing of additional licences cost approximately $10,000 and it would be difficult to justify such an expense as the organisation is currently altering the long term planning for email retention and so this expenditure could not be mitigated by long term use. There is currently no dedicated resource to undertake these searches on a regular basis. If staff were to perform the search along with their usual workload it would be necessary to take resources off the usual task of security compliance and security incident management to undertake such searches. This is likely to result in a reduction of the Respondent’s incident detection and response capability for the period of the search.

19.    I am instructed by Ms Kearney that the process for locating these documents includes obtaining the discs from the relevant period from the offsite storage location, reviewing the returned discs (estimated to be between 2500 and 3000 discs) to identify the correct disc, load each of the possible disc [sic] onto the recovery system and manually conduct the search. Once the correct discs are located, the IT department have estimated that it will need to search through approximately 32Gb of email archives, or eight archives, taking approximately three to four hours per archive.

32    It seems that Mr Holland’s affidavit was put forward by the respondent in relation to a notice to produce issued by the applicant in earlier proceedings in this Court: Hamden v Commonwealth of Australia [2010] FCA 924. I will refer to this earlier proceeding as the applicant’s appeal proceeding. The notice to produce is dated 21 April 2010 and it sought production of the 2007 emails in the applicant’s appeal proceeding. Lander J in that proceeding described the nature of the applicant’s appeal proceeding and how he dealt with the notice to produce as follows (at [3]-[12]):

3    On 22 March 2010 the appellant filed an amended notice of appeal raising 25 separate grounds of appeal, all of which relate to factual findings made by the Federal Magistrate, except perhaps the last ground of appeal which is that the learned Magistrate erred in his finding that there was no unlawful discrimination in the termination of the appellant’s employment.

4    I made two rulings during the hearing of the appeal relating to the receipt of fresh evidence on the appeal. At the hearing of the appeal the appellant sought to call on a notice to produce seeking production of “Copies of all emails sent by Bronwyn Szabados to Stephen Marsh for the period 3-11 May 2007 inclusive. This includes email as per hi-lited (sic) section on attached document.” The email which was attached to the notice to produce, which is the email referred to in the notice to produce itself, is an email from Ms Szabados to Mr Marsh in which she says, “Re David Hamden – plse (sic) ignore previous attachment sent to you earlier today – this attachment supersedes.”

5    Mr Hamden’s notice to produce was I think seeking earlier emails from Ms Szabados to Mr Marsh which included any previous attachments relating to Mr Hamden.

6    The appellant had brought proceedings in the Administrative Appeals Tribunal (the AAT) in relation to a claim for compensation under the Safety Rehabilitation and Compensation Act. The hearing of that matter commenced but was not completed before this proceeding came on for trial in the Federal Magistrates Court. In the AAT claim he was provided with documents by the respondent which were relevant to his claim in the AAT. Those documents included the email attached to the notice to produce.

7    The appellant conceded that the evidence which he sought on the notice to produce was available at the hearing in the Federal Magistrates Court but claimed that as a result of things said by the Federal Magistrate he understood that he was not able to obtain any further evidence. He directed me to an exchange between the Federal Magistrate and the appellant at the opening of the trial. At that stage his Honour drew to the appellant’s attention the unsatisfactory nature of the affidavits which were before the Federal Magistrates Court and upon which the appellant relied for his case. There was nothing in the exchange in my opinion which would have led the appellant to believe that he was not entitled to obtain further evidence. Moreover and more particularly, the time to obtain this evidence in the Federal Magistrates Court was before the trial.

8    The appellant accepts that he did not ask the respondent to discover the documents which are the subject of the notice to produce, nor did he make any application to the Court for an order for the discovery of those documents notwithstanding he was aware of the existence of the documents because he had received them in the AAT.

9    The appellant argued that he was unrepresented and inexperienced and therefore in those circumstances ought to be entitled to the production of the documents on the appeal.

10    Of course, where a party is unrepresented and inexperienced the party is entitled to some leniency in the way that the party might conduct any proceeding before the Court. Justice often requires such an approach.

11    However, in this case, the trial had proceeded over two days and the parties had adduced the evidence in response to the orders sought in the application. The evidence which the appellant now seeks to obtain was known to the appellant to exist at that time but not sought. It would not be fair to the respondent at this late stage to ask the respondent to produce that evidence and to then submit the parties to a further trial in the light of that further evidence.

12    Nothing was put before me to indicate that the appellant was either not able or persuaded or prevented from obtaining such evidence. It seemed to me the appellant was not entitled to obtain further evidence by way of the notice to produce for the purposes of the appeal.

The Application for an extension of time and the relevant factors

33    With his application for an extension of time, the applicant put forward (as required by Rule 31.02, Federal Court Rules 2011 (Cth)) a draft Originating Application for Judicial Review. In his draft Originating Application he makes a number of points. First, he seeks review of the Tribunal’s decision. Secondly, he claims he made his request for the 2007 emails under the FOI Act because he believed that the emails would assist him in establishing that the respondent gave false evidence in a proceeding in the Federal Magistrates Court involving him. As I understand it, that proceeding is the proceeding which resulted in the applicant’s appeal proceeding. He was ordered to pay costs in the proceeding and he believes the 2007 emails are his only opportunity to avoid possible bankruptcy. Thirdly, he seeks to bring his application under the ADJR Act and he contends that the respondent “withheld the ‘chain of emails’ [that is, the 2010 emails], in order to influence the outcome of the AAT Hearing”.

34    The time limit prescribed by the ADJR Act is 28 days from the date the decision was furnished to the applicant (s 11). In this case, the decision was furnished to the applicant on or shortly after 25 August 2011. It follows that the delay in making an application under the ADJR Act is approximately 11 months. The Court has power under s 11 of the ADJR Act to extend the time prescribed.

35    The factors the Court takes into consideration in deciding whether to extend the time limit under s 11 of the ADJR Act are well established. Relevant to this case I think they are as follows:

1.    The length of the delay;

2.    The explanation for the delay;

3.    The prejudice to the applicant if an extension of time is not granted;

4.    The prejudice to the respondent and any third parties if an extension of time is granted;

5.    The nature of the decision and, in that context, relevant public interest considerations including the need for finality in litigation; and

6.    The merits of the substantive application.

(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J).

36    This Court has said in the context of the time limit under the Federal Court Rules 1979 (Cth) O 52 r 15(2)) that something very persuasive will be required to justify a grant of an extension of time after, for example, a year: Jess v Scott (1986) 12 FCR 187 at 195. McHugh J made a similar observation in the context of the High Court’s jurisdiction to issue prerogative writs: Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 at 474 [16]. It is proper to take into account the merits of an applicant’s substantive application in considering whether to extend time, and the Court will not grant an extension of time where an applicant has no arguable case for relief: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 at 474 [17]; WAJU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 150 at [18] per Moore J.

37    In this case the period of delay is very substantial. During that period the applicant pursued a claim for mandamus directed to the Tribunal but, as I have said, that application was dismissed on 7 May 2012. Although, as the applicant points out, the Tribunal’s letter to him dated 25 August 2011 did not refer to any rights he may have under the ADJR Act, it did refer to his right of appeal on a question of law under s 44 of the AAT Act. As far as I can discern from the material before me, the applicant did not pursue an application under the ADJR Act earlier because the present point which he makes about the relevance of the 2010 emails did not occur to him until July 2012. That is not an adequate explanation for the delay.

38    As far as prejudice to the applicant if an extension of time is not granted is concerned, the applicant claims that he faces possible bankruptcy unless he can challenge the Tribunal’s decision. As I understand it, he claims that if he can establish that the Tribunal’s decision was vitiated by the respondent’s failure to include the 2010 emails in the T Documents, then he can pursue his application in relation to the 2007 emails. If he obtains access to the 2007 emails, he will be able to show that the earlier court proceedings in which costs orders were made against him were wrongly decided.

39    There does not appear to be any prejudice to the respondent or any third party if an extension of time is granted. On the other hand, there is a public interest in the finality of litigation.

40    As far as the merits of the substantive application are concerned, it is not for the Court to determine the application at this stage. However, an extension of time should not be granted if the substantive application is not reasonably arguable. Furthermore, if the prospects of success of a substantive application are plainly strong or plainly weak, then that may be a relevant consideration depending on the nature of the other factors (for example, the period of the delay and the explanation for it) relevant to the application for an extension of time.

41    The applicant’s substantive application faces a number of difficulties. The first question is whether the respondent failed to comply with subs 37(1) of the AAT Act in not including the 2010 emails in the T Documents. The obligation in subs 37(1) is to lodge documents with the Tribunal which “are relevant to the review of the decision by the Tribunal”. I have not seen the 2010 emails. I infer that they contain information which relates to the statements contained in Mr Holland’s affidavit about the retrievability of emails. The respondent submits that they were not relevant to the decision being reviewed by the Tribunal because I can infer from Ms Scanlon’s reasons that she relied on the information which was the subject of Mr Hill’s evidence to the Tribunal. There is no evidence either way as to whether Ms Scanlon saw the 2010 emails. It seems to me that the mere fact that the decision-maker did not rely on information in documents in reaching his or her decision or that it did not support the decision does not mean that the documents were not relevant to the review of the decision by the Tribunal within subs 37(1) of the AAT Act. The obligation on the Tribunal is to review the administrator’s decision on the merits and not merely on the basis of the reasons for his or her decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J; 599 per Smithers J. It is to arrive at the correct or preferable decision in the case before it according to the material before it: Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J (as his Honour then was). At the same time, the 2010 emails do not appear to be directly relevant and it seems to me almost inevitable that there will be grey areas in certain cases, of which this appears to be one, as to whether documents are relevant to the decision under review by the Tribunal. I think it is appropriate at this stage of the proceeding to assume in the applicant’s favour (without deciding) that the 2010 emails should have been included in the T Documents.

42    I think a failure to comply with subs 37(1) of the AAT Act could amount to a failure to observe a procedure required by law to be observed in connection with the making of a decision by the Tribunal within paragraph 5(1)(b) of the ADJR Act. There is no evidence in this case that any such failure was motivated by fraud so that it could be said that the Tribunal’s decision was induced or affected by fraud within paragraph 5(1)(g) of the ADJR Act. A challenge on that ground must fail.

43    A Court is not bound to grant relief under the ADJR Act on an applicant making out one of the grounds in s 5. The power to grant relief under s 16 of the ADJR Act is a discretionary power: Lamb v Moss (1983) 49 ALR 533, and relief may be refused on the ground that to make an order would be futile: Young v Wicks (1986) 13 FCR 85. Nevertheless, futility must be clearly established before relief is refused on that ground. Where there has been a failure to accord procedural fairness it has been said in both public and private law contexts that futility will only be made out if it can be shown that the failure has not deprived the applicant of the possibility of a successful outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Review Tribunal and Another: Ex parte Aala (2000) 204 CLR 82; Lee and Others v Minister for Immigration and Citizenship and Another (2007) 159 FCR 181. In private law and in the particular context of a failure to comply with an order for discovery, it has been said that in the ordinary case a verdict will not be set aside unless there appears at least a real possibility that the verdict would have been different had there been proper discovery: Commonwealth Bank of Australia v Quade (1991) 178 CLR 134. I do not need to explore these issues any further because I think the refusal of relief in this case is inevitable or almost inevitable.

44    The Tribunal had before it at least part of Mr Holland’s affidavit sworn on 14 May 2010. The Tribunal said:

14.    Mr Hamden [sic] contentions arose out of his Summary of Argument and he explained them as follows:

…

(b)    Certain emails which were annexed to affidavits lodged by Centrelink in earlier proceedings in the Federal Magistrates Court were dated 10 May 2007 and were thus more than 87 days old (see Exhibits A1 and A2).

…

17.    Mr Hamden referred to affidavits filed or referred to in proceedings in the Federal Court and in the Federal Magistrates Court which showed that original Centrelink emails could be retrieved, even if they were more than 87 days old. I have reviewed his contentions and the emails involved. I am not satisfied that the contents of the affidavits support his contentions. The emails are not original documents, but are merely photocopies of attachments to the affidavits.

45    The point is that it is very difficult to see how the 2010 emails would have added anything favourable to the applicant’s case over and above what was in Mr Holland’s affidavit and therefore it is difficult to see how the inclusion of the 2010 emails in the T Documents would have made any difference to the result in the Tribunal.

46    There may be a further reason to think that the substantive application is futile, or, it may be more accurate to say, a reason why the prejudice to the applicant will not be significant if the application for an extension of time is refused. Even if the Tribunal decision is set aside and the applicant ultimately obtains access to the 2007 emails, it is difficult to see how that will advance any claim he has against the respondent. He has exhausted his appeal rights in relation to his application under the Disability Discrimination Act 1992 (Cth) and it is to be noted that in Hamden v Commonwealth of Australia [2010] FCA 924, Lander J considered that it was too late for the applicant to put forward evidence of the 2007 emails on the appeal. However, as this aspect of possible prejudice to the applicant was not the subject of submissions I do not propose to rely on it for the purpose of making my decision on this application.

47    I do not think that the applicant’s substantive application is reasonably arguable. Alternatively, I think the prospects of it succeeding are poor.

48    Weighing all matters I have identified in the balance and, in particular, the length of the delay, the explanation proffered for the delay and merits of the substantive application (even accepting some prospect of success, albeit poor), I think the application for an extension of time should be refused.

Conclusion

49    For these reasons the applicant’s application for an extension of time dated 6 August 2012 must be refused.

Associate:

Dated:    9 January 2013