Federal Court of Australia
Matson v Secretary, Attorney-General’s Department [2021] FCA 1027
ORDERS
Applicant | ||
AND: | SECRETARY, ATTORNEY-GENERAL'S DEPARTMENT First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
THE COURT ORDERS THAT:
1. The originating application filed 10 November 2020 be dismissed.
2. The interlocutory relief sought by the applicant in the originating application filed 10 November 2020 be refused.
3. The interlocutory application filed on 10 June 2021 be dismissed.
4. The interlocutory application filed on 15 June 2021 be dismissed.
5. The applicant be refused leave to file and serve an interlocutory application dated 20 August 2021.
6. The applicant pay the costs of the first respondent of and incidental to the proceeding, to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J:
Introduction
1 Before the Court are a number of related applications brought by the applicant, Mr Matson.
2 The first is an originating application (substantive application), filed 10 November 2020, for judicial review of three decisions (Tribunal decisions) made on 27 August 2020 by the Administrative Appeals Tribunal (Tribunal). Mr Matson seeks relief pursuant to the Administrative Decisions (Judicial Review) Act 1997 (Cth) and/or under s 75(v) of the Constitution. The decisions were described by Mr Matson in his originating application as follows:
a) a decision to dismiss an application made by the applicant (Baron Phillip Matson) on 12 July 2020 for “leave to be released from the ‘implied undertaking’ referred to in paragraphs [5.2] to [5.4] in part 5 of the FREEDOM OF INFORMATION PRACTICE DIRECTIONS given under s 18B of the ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH) (the AAT Act);
b) a decision to grant an application made by the Respondent (Attorney-General’s department) on 23 June 2020 for directions pursuant to s 35(4) of the AAT Act prohibiting the publication and disclosure of certain documents; and
c) a decision to refuse an adjournment application made by the applicant on 27 August 2020, which was made during oral submissions.
(Emphasis in original).
3 Second, in the substantive application Mr Matson also claimed various interlocutory orders (interlocutory relief sought in substantive application), being in summary:
Stay of the proceedings and orders of the Tribunal pending hearing and determination of this application by the Court (paras 5 and 6).
Production by the learned Deputy President of the Tribunal of unredacted versions of certain documents, and a copy of the Tribunal transcript for the hearing that occurred on 27 August 2020 before the Deputy President in AAT matter 2020/2703 (para 7).
Production by the first respondent of unredacted versions of certain documents (para 8).
Production by the Office of the Australian Information Commissioner (OAIC) of unredacted versions of certain documents (para 9).
4 Third, Mr Matson sought relief in terms of an interlocutory application filed on 10 June 2021 (10 June 2021 interlocutory application), being in summary:
Vacation of orders made on 13 May 2021 until the 10 June 2021 interlocutory application, and any appeals, be heard and determined (para 1).
The proceeding in QUD360/2020 be stayed until:
(i) various litigation funding applications of Mr Matson be “determined and approved”, or the Court issue a referral certificate for pro bono assistance for Mr Matson (para 2);
(ii) hearing and determination of Mr Matson’s application for review of decisions of the Queensland Registry refusing the acceptance for filing of an application for leave to appeal from my orders of 13 May 2021 (para 3);
(iii) the Australian Human Rights Commission made a “finding” in relation to a complaint of Mr Matson dated 10 August 2020 (para 4); and
(iv) such time as Mr Matson’s “Formal Complaint to the Chief Justice” dated 3 June 2021 was processed and finalised (para 5);
Consolidation of the proceedings with proceedings QUD356/2020 and QUD 83/2021 (para 6).
Proceeding QUD360/2020 be referred to mediation (para 7).
The first respondent file and serve the “annotated schedule of documents” in relation to Revised FOI Decision FOI18/082 dated 4 July 2019 (para 8).
The first respondent file and serve a bundle of relevant documents before the Tribunal (para 9).
The transcript of the Tribunal hearing in AAT matter 2020/2703 heard on 27 August 2020 be provided to Mr Matson (para 10).
The Auscript transcript for the case management hearing dated 13 May 2021 for proceeding QUD360/2020 be provided to Mr Matson (para 11).
Mr Matson be granted leave to file and serve an amended Originating Application (para 13).
Mr Matson be granted bail (para 14).
5 Fourth, on 15 June 2021 Mr Matson filed an interlocutory application (15 June 2021 interlocutory application) seeking, in summary, the following relief:
An interlocutory injunction to restrain the Federal Court of Australia from giving effect to my orders of 13 May 2021 in QUD360/2020 pending the hearing and determination of this interlocutory application and any appeals (para 1).
That I recuse myself from presiding over this matter (para 2).
That the proceeding be listed for further case management with proceedings QUD356/2020 and QUD83/2021 (para 3).
6 (I note that Mr Matson’s application for my recusal was dismissed by consent on 9 July 2021, at which time he was legally represented).
7 Fifth, at the hearing before me on 19 August 2021 Mr Matson sought:
an adjournment of that hearing;
the production by the Court of an “AAT Bundle” of material forwarded by the Tribunal to the Court on or about 12 March 2021;
leave to issue subpoenas to the Tribunal to produce the transcript of proceedings before the Tribunal; and
the opportunity to make further submissions concerning the “AAT Bundle” and the transcript of proceedings before the Tribunal.
8 After hearing Mr Matson, and Mr McKechnie for the first respondent, I:
refused to grant an adjournment of the hearing;
refused to order the production by the Court of the “AAT Bundle” of material;
refused to allow further submissions to be made or further material to be filed;
refused to grant leave to Mr Matson to issue subpoenas to the Tribunal;
stated that I would publish reasons for these refusals; and
otherwise reserved judgment.
9 I also note that, subsequent to the reservation of judgment, Mr Matson sought leave to file another interlocutory application (additional interlocutory application), in which he sought, in summary, the following relief:
Leave to file that interlocutory application (para 1)
Leave to re-open the substantive matter and file both additional evidence and submissions (para 2); and
Mr Matson be provided a copy of the document bundle sent by the Tribunal to the Court on 12 March 2021 in relation to matter QUD360/2020 (para 3).
10 Having further considered the material before the Court I consider that:
the substantive application should be dismissed;
the interlocutory relief sought in the substantive application and all interlocutory applications should be refused; and
an order for costs should be made against Mr Matson.
11 I also refuse to grant leave for Mr Matson to file his additional interlocutory application.
12 I now set out my reasons for these decisions.
Background
13 Mr Matson is sought by relevant authorities in the United States of America (USA) for extradition in relation to various charges of fraud and conspiracy.
14 Between 2017 and 2019, Mr Matson made numerous applications to the first respondent seeking access to documents under the Freedom of Information Act 1982 (Cth) (FOI Act). The first respondent made decisions in relation to those applications, and Mr Matson sought review of those decisions by the Australian Information Commissioner (Commissioner).
15 On 1 February 2019, the Acting Commonwealth Attorney-General determined pursuant to s 22(2) of the Extradition Act 1988 (Cth) that the applicant be surrendered to the USA (surrender decision). On 11 February 2019, Mr Matson commenced proceedings in the Federal Court of Australia under s 39B of the Judiciary Act 1903 (Cth), challenging the surrender decision (QUD107/2019).
16 On 9 April 2020, a delegate of the Commissioner decided not to continue to undertake review of Mr Matson’s applications. On 27 April 2020, Mr Matson made an application to the Tribunal for review of this decision.
17 On 23 June 2020, the first respondent filed documents in the Tribunal (Tribunal documents) under ss 37(1)(b) and 37(1AF)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and made an application for confidentiality orders under s 35(4) of the AAT Act (confidentiality order application).
18 By letter dated 12 July 2020, Mr Matson wrote to the Tribunal to:
formally make application for leave to be released from the “implied undertaking” referred to at paragraphs [5.2] to [5.4] in Part 5 of the Freedom of Information Practice Direction signed Justice D.G. Thomas, President dated 28 February 2019.
(application for release from the implied undertaking)
19 The documents in relation to which Mr Matson sought release from the implied undertaking were described by Mr Matson in his letter to the Tribunal of 12 July 2020 as follows:
All section 37 documents provided under cover of Australian Government Solicitor letter dated 23 June 2020 signed Elena Adruca, Senior Executive Lawyer, including the documents subject to the proposed confidentiality order under section 35 of the ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH), which proposed order was provided to the AAT also under cover of Australian Government Solicitor letter dated 23 June 2020 signed Elena Adruca, Senior Executive Lawyer.
20 Mr Matson described his reasons for release of those documents, and who would use the documents, as follows:
I want the release in order to use the documents in the ongoing Federal Court of Australia proceeding Qud 107 of 2019 – BARON MATSON v THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA. The documents will be filed as evidence in support of my arguments that claim the surrender decision made on 1 February 2019 by the Acting Attorney General was made on incomplete information and not made according to law. The documents are directly relevant to procedures undertaken by the Department in 2018 while processing my FOI requests and will only be used in proceeding Qud 107 of 2019. The documents will only be used by myself and the Respondent (the Attorney-General) and the Court.
21 By email dated 10 August 2020, the first respondent wrote to Mr Matson seeking agreement to proposed consent orders under s 42C of the AAT Act. The consent orders sought Mr Matson’s agreement to a confidentiality order over a number of documents contained in the Tribunal documents. By letter dated 24 August 2020, Mr Matson wrote to the Tribunal advising that he was unable to agree to the terms proposed by the first respondent at that time.
22 On 25 August 2020, the Tribunal listed the confidentiality order application for interlocutory hearing by telephone at 9.00 am on 27 August 2020. A Listing Notice addressed to a lawyer instructed by the first respondent was emailed at 10.05 am on 25 August 2020.
23 The Court Book in this proceeding was compiled by the first respondent. The first respondent does not enclose a copy of the Listing Notice as sent to Mr Matson at the Arthur Gorrie Correctional Centre. It is unclear if a copy of that Listing Notice was similarly sent (by separate communication) to Mr Matson on 25 August 2020.
24 That same day, the first respondent advised the Tribunal by email that the first respondent’s counsel was not available at the listed time, and that the first respondent intended to file submissions and witness statements in relation to its confidentiality application and Mr Matson’s application for release from the implied undertaking. The first respondent also requested that the hearing be listed the following week.
25 By return email that same day, the Tribunal denied the first respondent’s request for an adjournment. The Tribunal wrote:
The Deputy President is not minded to grant an adjournment. The Tribunal understands that Mr Matson has an upcoming appearance in the Federal Court. Given his request for a release from the implied undertaking relates to the use of documents filed in this proceeding in the Federal Court, the Deputy President considers that these matters should be addressed on Thursday.
26 The first respondent sent further correspondence by email to the Tribunal requesting the hearing be relisted for a time after 2.30 pm on 27 August 2020. The Tribunal granted the request and relisted the interlocutory hearing by telephone at 2.30 pm on 27 August 2020.
Decision of the Tribunal
27 At the interlocutory hearing on 27 August 2020, four interlocutory applications were before the Tribunal:
(1) The confidentiality order application.
(2) The application for release from the implied undertaking.
(3) An application made by Mr Matson on 18 July 2020 for directions that the first respondent “re-assess their records and complete to the best of their ability and to the extent possible the remaining two ‘annotated schedules of documents’ for FOI decisions FOI18/023 and FOI18/082” (application for annotated schedules).
(4) In the course of the hearing, Mr Matson made an oral application for adjournment of the hearing in relation to the confidentiality order application and the application for release from the implied undertaking (Tribunal application for adjournment).
28 In summary, the Tribunal decided ex tempore that:
(1) The confidentiality order application be granted.
(2) The application for release from the implied undertaking be refused.
(3) The Tribunal application for adjournment be refused.
29 The application for annotated schedules was not resolved, however the Tribunal of its own initiative adjourned the proceedings insofar as concerned the application for annotated schedules in order to allow the parties to file further submissions.
30 No written reasons were published at the time of the Tribunal’s decisions. In light of the substantive application filed by Mr Matson in this proceeding, on 7 April 2021 the Tribunal published written reasons for its decisions (reasons for decision). I have regard to those reasons for decision in considering the applications before me.
Confidentiality order application
31 Turning first to consider the first respondent’s confidentiality order application, the Tribunal identified at [14] of its reasons for decision that the issue for determination was whether the material to which Mr Matson sought access was exempt from disclosure pursuant to s 33 of the FOI Act. The Tribunal observed that s 63 of the FOI Act made it clear that, in considering an application for a confidentiality order, the Tribunal must avoid disclosing material which may ultimately, in those proceedings, be found to be an exempt document. The Tribunal held that this was precisely the situation confronted by the Tribunal on 27 August 2020.
32 The Tribunal observed at [15] that, in the substantive application, the Tribunal could ultimately find that the documents in question were not exempt documents. However, the Tribunal held that to refuse to make a confidentiality order over those documents, or parts of documents, which it was claimed were protected from disclosure by s 33 of the FOI Act, would be to obviate the whole purpose of the substantive application. Clearly, if a respondent claimed that a document was exempt from disclosure, the document must remain undisclosed to the party seeking it unless and until the proceedings were finally resolved in the applicant’s favour.
33 Accordingly, the Tribunal granted the first respondent’s confidentiality order application.
Application for release from the implied undertaking
34 The so-called implied undertaking (also known as “Harman undertaking” in light of the decision of the House of Lords in Harman v Secretary of State for the Home Department [1983] 1 AC 280; [1982] 2 WLR 338) is to the effect that a party who seeks discovery of documents obtains it on condition that the party will make use of those documents only for the purpose of that action, and for no other purpose: see for example Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [105]. This principle is reflected in Directions 5.2, 5.3 and 5.4 of the Tribunal’s General Practice Direction issued 28 February 2019, which provide:
Implied undertaking
5.2 If you or the decision-maker have obtained a document provided under compulsion in an application before the AAT, you, the decision-maker and any person to whom the document is given, by implication, undertake to the AAT that the document will not be used for any purpose other than the purpose for which it was given to us unless:
(a) the document was received in evidence by us in the application and the confidentiality of the document is not protected by an order under section 35 of the AAT Act or by another statutory provision; or
(b) we give you or the decision-maker permission to use the document for another purpose.
5.3 Documents to which the implied undertaking applies include:
(a) documents lodged under section 37 or 38AA of the AAT Act;
(b) documents lodged pursuant to a direction given by us (for example, expert reports or witness statements); and
(c) documents produced in response to a summons issued by us.
5.4 The implied undertaking continues even after an application has been finalised. Breach of the implied undertaking by using the documents for another purpose may constitute a criminal offence under section 63 of the AAT Act on the basis that it could, if the AAT were a court of record, constitute a contempt of court.
35 I noted earlier the purpose for which Mr Matson stated he sought release from the implied undertaking, namely in order to rely on the relevant documents as evidence in QUD107/2019.
36 The first respondent opposed Mr Matson’s application for release from the implied undertaking on the basis that it would be inappropriate in the circumstances, and undermine the processes of the Federal Court where there was a pending application for discovery (in QUD107/2019) made by Mr Matson over the same material from which he sought release from the undertaking.
37 The Tribunal refused Mr Matson’s application for release from the implied undertaking for the reasons that follow.
38 First, the Tribunal considered that release of Mr Matson from the implied undertaking would not have the effect that he apparently sought. The Tribunal held that documents or part of documents that were subject to a confidentiality order were not to be supplied to Mr Matson, and therefore, Mr Matson would not “receive” those documents subject to an implied undertaking that he would not use them in other proceedings. The Tribunal concluded that “release” from the implied undertaking in that context was, therefore, meaningless.
39 Second, the Tribunal observed that no special circumstances had been identified which would obviate the usual rule that a party not use documents provided to them under compulsion for any purpose other than the purpose for which they were given. The circumstances of relevant documents having been lost, while highly unusual, was not a circumstance that was special in the sense used here, particularly given that the release from the implied undertaking would not cure any problem of lost documents. Accordingly, the Tribunal was not satisfied that anything of value to the proceedings would be achieved by releasing Mr Matson from the undertaking.
40 Third, the Tribunal accepted the first respondent’s submission in respect of the potential undermining of processes of the Federal Court. The Tribunal found that it was evident that the documents from which the release from the implied undertaking was being sought were the same documents, or substantially the same documents, as those in respect of which Mr Matson was seeking an order for discovery in Federal Court proceedings QUD107/2019. Accordingly, the Tribunal held that an order releasing the applicant from the implied undertaking had the potential to cut across the process in the Federal Court.
41 The Tribunal considered that, at the very least, the making of such an order as sought by the applicant would have no utility, in that the same documents were before the Federal Court in proceedings QUD107/2019, and the Federal Court was perfectly capable of determining the fate of the documents in the context of Mr Matson’s application for discovery. The Tribunal accepting the following submission by Counsel for the first respondent:
…the primary point is that Rangiah J is best placed to determine what is relevant to the substantive Federal Court proceedings and that application is set to be heard tomorrow. If his Honour considers that these documents are relevant he will make an order for discovery. If his Honour decides these documents are not relevant then he won’t make the order for discovery and, therefore, no special circumstances would arise in order to provide for a relief from the implied undertaking. That’s in relation to the substantive proceedings in the Federal Court.
I understand that Mr Matson is also now making an argument that he needs the section 37 documents in order to make good his application for discovery but that is circular in and of itself because the application for discovery is of the section 37 documents. So he can’t say he needs to produce those documents to the court so that then they can be discovered to him.
42 Finally, the Tribunal noted that it was possible for the question of release from the implied undertaking to be reconsidered in future if special circumstances could be demonstrated.
The adjournment application
43 After the Tribunal had determined the confidentiality order application, and as it was considering submissions in relation to the application for release from the implied undertaking, Mr Matson made an application that the hearing relating to both applications be adjourned to allow him to conduct further research on the questions being considered by the Tribunal. Notwithstanding that the Tribunal had already determined the confidentiality order application, the Tribunal entertained Mr Matson’s application for an adjournment with respect to both matters.
44 The Tribunal acknowledged the unfortunate circumstances of the late provision of notice to Mr Matson of the hearing, apparently approximately two hours before the hearing was due to commence. The Tribunal also acknowledged that, ordinarily, a failure to provide a party with proper notice of a hearing would be regarded as a basis for adjourning that hearing, if the party felt disadvantaged in those circumstances.
45 The Tribunal considered the following facts relevant to Mr Matson’s adjournment application:
30. … the Tribunal had made it clear at an earlier interlocutory hearing in the same matter that it wished to resolve the parties’ various interlocutory applications prior to the hearing before Rangiah J on 28 August 2020. It had, however, deferred the interlocutory hearing to consider those applications because it had been advised that the parties were in discussion regarding consent orders in relation to the confidentiality application. It was only when it became clear that agreement on that question had not been reached that, at relatively short notice, the interlocutory hearing was set down for 27 August 2020.
31. An email was sent to both parties on 25 August 2020 advising that the interlocutory hearing would be held at 9.00am on 27 August. A further email was sent to both parties later the same day revising the starting time for the interlocutory hearing to 2:30pm. The email to Mr Matson was in fact addressed to an officer at the correctional centre where he is incarcerated. The Tribunal had been previously advised that Mr Matson was unable to receive emails or text messages directly, but that they should be sent to the relevant officer who would print them and hand them in that form to Mr Matson. Obviously, in these circumstances, communication with Mr Matson was sometimes achieved with difficulty, and the Tribunal had been apprised that sometimes these communications did not reach him, or did not reach him in a timely way. However, there were few alternative means of communication.
46 The Tribunal accepted Mr Matson’s claim that the original two email notices of the interlocutory hearing did not reach Mr Matson, but that Mr Matson did receive the first respondent’s written submissions, alerting him to the interlocutory hearing only a short time before it was to commence. Although the Tribunal noted that the way in which Mr Matson was advised of the interlocutory hearing was “highly unsatisfactory”, the Tribunal did not consider that an adjournment was appropriate.
47 In respect of the confidentiality order application, the Tribunal was aware that the first respondent had a responsibility under s 37 of the AAT Act to provide relevant documents within the timeframe in the legislation – i.e. generally 28 days. The Tribunal acknowledged that, to comply with those provisions, the first respondent needed its confidentiality order application dealt with. For the reasons summarised above, the Tribunal considered it appropriate to adopt the “default” position and to grant the application in line with the provisions of s 63 of the FOI Act. The Tribunal held, however, that doing so did not prevent Mr Matson from making a further application at a later stage of the proceedings if some new argument, discovered through further research, became apparent to him. Accordingly, the Tribunal concluded that resolving the confidentiality order application occasioned no disadvantage to Mr Matson.
48 In respect of the application for release from the implied undertaking, the Tribunal held that there appeared to be an urgency which worked against the desirability of an adjournment. The Tribunal observed that Mr Matson had pressed for a decision to release him from the implied undertaking to assist him, as he saw it, in his Federal Court proceedings the following day. For the reasons summarised, the Tribunal regarded an order for release from the implied undertaking as having the potential to cut across the proceedings in the Federal Court. The Tribunal noted that Mr Matson made it clear at the interlocutory hearing that if the Tribunal accepted his request for an adjournment he would use that fact as the foundation for an application to adjourn the Federal Court proceedings the following day. The Tribunal was cautious about making an order which might prove an inconvenience to the Federal Court in that context. Accordingly, the Tribunal concluded that no disadvantage would be visited on Mr Matson, by refusing his application, which could not otherwise be remedied the following day in the Federal Court proceedings.
49 Finally, the Tribunal rejected Mr Matson’s argument that the provision of written submissions by the first respondent in some way disadvantaged Mr Matson. The Tribunal held that, logically, the applicant would have been more disadvantaged had the submissions been presented orally at the interlocutory hearing and had he not had two hours or so beforehand to digest them in written form.
The annotated schedules application
50 For completeness, the Tribunal briefly addressed in its written reasons for decision the annotated schedules application.
51 The Tribunal noted that, at the interlocutory hearing, the Tribunal offered Mr Matson an adjournment of this application, as the Tribunal did not considered there to be anything time- critical about that application. Mr Matson, however, declined to adjourn.
52 As consideration of the application proceeded, it became apparent to the Tribunal that resolution of the application required the parties to submit further information which was not readily at hand. Accordingly, the Tribunal adjourned the proceedings at its own initiative and made directions for written submissions to be filed.
53 In its written reasons, the Tribunal concluded:
40. Subsequently, however, I understand that the parties reached agreement on the form of annotated schedules, which were then provided to Mr Matson. The Tribunal was not asked to make any further orders in respect of this application.
Relevant DECISION IN QUD107/2019
54 Relevantly on 6 July 2020 Mr Matson filed an application for discovery in QUD107/2019 (6 July Discovery Application). In that application Mr Matson sought discovery of the following documents:
5. in accordance with rule 20.31(3) an order that the Respondent produce to the Court by 22 April 2020 or at a date agreed by the parties the following documents:
a) unredacted copies of the documents referred to in the Applicant's Form 39 “Notice to produce a document in a pleading or affidavit” of 18 February 2020, which was served on the Respondent and detailed all of the documents mentioned in Ms Fiona Dempsey's affidavit of 22 July 2019 which was filed in QUD 107 of 2019;
6. in accordance with rule 20.35(1) an order for “Production to Court” stating that the Respondent produce the following documents to the Court (which documents are in the Respondent's control and are related to the proceeding) at a date agreed by the parties:
a) unredacted copies of the 2 x hardcopy pages, “extradition related” documents dated 2005 in relation to the Applicant, as detailed on page 7 of 11 of Attorney General's Department letter dated 20 December 2019;
b) an unredacted copy of the one (1) additional document dated 2007 - 2009 in relation to the Applicant and provided by an unknown foreign state, as identified in the Attorney-General’s Depmtment submissions for the IC Review of FOI decision FOI18/019;
c) unredacted copies of the documents provided under cover of the Attorney General's Department letter of 6 November 2019, namely the four revised decisions (AGD reference: FOIl8/023, FOI18/082, FOI18/202 and FOI18/203); and
d) unredacted copies of the “confidential documents” referred to in the proposed order of the Australian Government Solicitor dated 23 June 2020 filed in Administrative Appeals Tribunal matter 2020/2073;
7. in accordance with rule 20.15 of the Federal Court Rules 2011 (Cth) an order for discovery '”Non-standard and more extensive discovery” of the following types of documents which are in the actual or constructive possession of the Attorney-General's Department; the acting Attorney-General The Honourable Greg Hunt MP; or the Attorney-General, The Honourable Christian Porter MP for during the period of 1 January 1997 to 5 March 2020:
a) an unredacted screen shot of all “Content Manager” electronic file cover pages for all Attorney-General's Department files in relation to, or that refer to, either Baron Phillip Matson (DOB 16 September 1977) or Roger Gregory Matson (DOB 7 June 1941) in relation to all matters including mutual assistance, extradition, potential domestic prosecution, FOI requests and any other matter;
b) unredacted copies of all hardcopy file cover sheets or cover pages for all Attorney-General's Department files in relation to, or that refer to Baron Phillip Matson (DOB 16 September 1977) or Roger Gregory Matson (DOB 7 June 1941) in relation to all matters including mutual assistance, extradition, potential domestic and international prosecution, criminal investigations, FOI matters, consultations and any other matter;
c) unredacted copies of all documents, whether electronic or hardcopy, that are in the actual or constructive possession of the Attorney-General's Department that are in relation to, or that refer to Baron Phillip Matson (DOB 16 September 1977) or Roger Gregory Matson (DOB 7 June 1941) in relation to all matters including mutual assistance, extradition, potential domestic and international prosecution, criminal investigations, FOI matters, consultations and any other matter, including but not limited to the following document categories:
• all communications and correspondence;
• internal departmental emails;
• departmental emails sent and received from third parties;
• facsimiles;
• letters;
• reports;
• file notes (including case notes and telephone logs);
• warrants;
• alerts (including INTERPOL Red Notice Alerts);
• briefs of evidence;
• mutual assistance requests;
• legal advice;
• administrative documents;
• minutes of meetings;
• diary entries of relevant case officers;
• affidavits;
• originals, finals, drafts and duplicate copies of all documents whether executed, signed, or unsigned; and
• all records (including all copies, reproductions and duplicates of such documents and information recorded on a computer tape or computer disk).
d) unredacted copies of all records (including all copies, reproductions and duplicates of such documents and information recorded on a computer tape or computer disk) kept by the acting Attorney-General, The Honourable Greg Hunt MP in relation to the surrender decision purported to be made under s 22 of the Extradition Act 1988 (Cth) of 1 February 2019 in relation to the Applicant, including any diary entries as to the time allocated for considering the ministerial brief provided in relation to the surrender decision and any other notes or diary entries made by the acting Attorney-General in relation to the surrender decision purported to be made in relation to the Applicant;
e) unredacted copies of all records (including all copies, reproductions and duplicates of such documents and information recorded on a computer tape or computer disk) kept by the Attorney-General, The Honourable Christian Porter MP in relation to the surrender decision purported to be made under s 22 of the Extradition Act 1988 (Cth) of February 2019 in relation to the Applicant's father Roger Gregory Matson, including any diary entries as to the time allocated for considering the ministerial brief provided in relation to the surrender decision and any other notes or diary entries made by the Attorney-General in relation to the surrender decision purported to be made in relation to the Applicant's father.
55 In Matson v Attorney-General [2020] FCA 1558 Rangiah J noted that Mr Matson had proceedings in the Tribunal seeking disclosure of FOI documents in unredacted form, however his Honour was not satisfied that Mr Matson had demonstrated that there would be any significant advantage to Mr Matson in pursuing the Tribunal proceedings over continuing with the application for discovery he had made to the Federal Court (at [356]).
56 His Honour noted at [386] that the 6 July Discovery Application was filed 11 days after the dismissal of an earlier application for discovery (originally filed on 11 March 2020), and that the applications were in substantially the same terms (albeit with additional documents sought in the later application). His Honour noted that, in the 6 July Discovery Application, Mr Matson sought reopening of the proceeding and discovery, for reasons including alleged error by his legal representatives in respect of the earlier discovery application. Importantly, his Honour continued:
398. I accept that the nature of the proceeding, being one in which the liberty of Mr Matson is at stake, favours a liberal approach. However, in this case, the most significant factor is the nature and probative value of the further evidence sought to be led by Mr Matson. He submits that the relevance of the letter from the OAIC dated 3 April 2020 is that it shows that it is uncertain that all the FOI documents that are required to be disclosed were in fact disclosed on 6 November 2019, and that the Court proceeded under a misapprehension that they had been disclosed. However, even if the letter can be interpreted in that way, the difficulty remains as to the relevance of documents that may not have been disclosed under FOI processes to the validity of the Surrender Decision. I dealt with that issue in relation to the substantive grounds earlier in these reasons. It has not been demonstrated that the letter may have any relevant effect upon Mr Matson’s case.
399. In addition, it has not been demonstrated that the letter from the AGS dated 23 June 2020 would add anything of substance to Mr Matson’s case in the substantive application. The letter seems to assert privilege in respect of copies of the same documents in respect of which privilege has already been claimed. It appears that the copies were created when consulting with third parties and the OAIC about the FOI reviews.
400. Mr Burnside QC did not pursue reopening of the evidence on 25 June 2020, even though the 11 March Discovery Application had sought reopening. Mr Matson’s legal representatives were aware of the letters from the OAIC and from the AGS. The decision not to pursue reopening on the basis of those letters was evidently a deliberate decision. The fact that Mr Matson’s legal representatives decided not to pursue the application for reopening tells against acceding to a second application for the same relief.
401. It is also relevant to take into account the public interest in the conclusion of litigation.
402. The consequences of the Attorney-General’s decision are no doubt extremely important to Mr Matson. However, that does not override the weight of the countervailing factors. The interests of justice are best served by refusing the application to reopen the evidence.
403. Therefore, the 6 July Discovery Application is dismissed.
(Emphasis added).
57 Tracing further back into his Honour’s decision, Rangiah J explained in detail circumstances in which Mr Matson was provided with revised FOI decisions on 4 July 2019. Materially, his Honour explained:
30. In 2018, Mr Matson made approximately 12 FOI requests under the Freedom of Information Act 1982 (Cth) with respect to documents and communications in the possession of the Department referring to him and his father, Roger Matson. Relevantly, the Department determined that 108 documents existed in relation to Mr Matson and his father in FOI Requests FOI18/023, FOI18/082, FOI18/202 and FOI18/203, a number of which were disclosed to Mr Matson (the 2018 FOI Documents). Mr Matson was dissatisfied, and sought review of the FOI decisions by the Office of the Australian Information Commissioner (the OAIC). Whilst the OAIC was conducting those reviews, the Attorney-General made the Surrender Decision on 1 February 2019. The Attorney-General had not been asked by Mr Matson to refrain from making that decision pending the completion of the review process.
31. On 4 July 2019, Mr Matson was provided with four Revised FOI Decisions from the Department, which indicated that fresh searches had revealed 181 documents relevant to his FOI Requests, a number of which were disclosed to Mr Matson, albeit in a heavily redacted form (the 4 July FOI Documents). Mr Matson alleges that the 4 July FOI Documents included over 70 additional documents, the existence of which had not been disclosed to him in the various FOI decisions made in 2018. I will adopt Mr Matson’s description of these over 70 additional documents as the “Withheld Documents”. He also asserts that the 4 July FOI Documents were provided with different descriptions, different dates and different page numbering compared to the 2018 FOI Documents, such that he could not determine which documents he had already received. Mr Matson subsequently requested that the Department provide him with the 4 July FOI Documents in chronological order, and indicate which of those documents comprised the Withheld Documents.
32. A letter dated 6 November 2019 from the Department to Mr Matson attached the 4 July FOI Documents, but now with a footer that included the FOI decision reference and pagination (the 6 November FOI Documents). At the hearing, Mr Matson claimed to have only received the documents on 15 November 2019, three days prior to the hearing. He claimed that he was not able to determine which documents had already been provided to him in 2018, such that he could not ascertain which documents were the Withheld Documents.
33. Mr Matson submitted that he should have received the Withheld Documents prior to the making of the Surrender Decision on 1 February 2019, and that the failure of the Department to provide him with those documents was a denial of procedural fairness. I questioned whether the fact that Mr Matson had not received the Withheld Documents under the FOI process prior to the making of the Surrender Decision was relevant to the issue before me, namely the legality of the Surrender Decision. Mr Matson submitted that it was relevant because he may have been able to use the Withheld Documents in submissions to the Attorney-General, and that may have influenced the Attorney-General’s conclusion regarding his extradition.
(Emphasis in original).
58 Justice Rangiah noted that Mr Matson was provided with the Withheld Documents, consisting of over 70 new documents, many of which were heavily redacted, on 4 July 2019, and that his application of 11 March 2020 was essentially for unredacted copies of those documents. Materially, however, Rangiah J observed:
372. It will not suffice to rely on mere suspicion that discovery may produce documents directly relevant to the issues raised in the proceeding …
373. It may be accepted, as Mr Burnside QC submitted, that the redacted documents are about Mr Matson. However, the issue concerned the potential relevance of the documents to the issues raised in the Draft Amended Originating Application.
374. As I have discussed, Mr Matson makes numerous allegations of bad faith, improper purpose, actual bias, and perhaps fraud, on the part of officials of the Department and of the USA. The allegations against Departmental officers include making misleading statements, wrongfully withholding documents sought under FOI applications and providing knowingly false information to the Attorney-General. The allegations against USA officials include deliberately delaying in notifying Mr Matson of the charges and requesting his extradition, providing knowingly false information to the Department and to a USA court, and “covering up” the true nature of the delay. These serious allegations have been supported only by Mr Matson’s speculations based on the fact that documents were redacted in the FOI process and upon asserted inconsistencies in representations made about the numbers and types of documents held by the Department.
375. Mr Burnside QC took up the allegation that USA officials knew Mr Matson’s whereabouts in Australia but had deliberately delayed, submitting:
Now, that comes down to something slightly more focused, which is the main problem in the application is the suggestion that the Americans delayed for 10 or 15 years before making the extradition request, and it is suggested that they did not know the address of Mr Matson during the decade or so of delay, but what we don’t know is whether the wholly redacted or substantially redacted material includes anything that says that the Americans did not know how to find Mr Matson.
376. However, Mr Burnside QC did not point to evidence that would take the allegations of bad faith, improper purpose, actual bias, and perhaps fraud, outside the realm of mere allegations and speculation. This is a case, like Wong, where there is insufficient evidence to ground an inference that officers may have engaged in such conduct.
377. Mr Burnside QC submitted that without having unredacted copies of the documents sought by Mr Matson, it could not be determined whether those documents were before the Attorney-General. However, the documents that were before the Attorney-General were clearly identified in the Departmental Submission, and those documents have been disclosed to Mr Matson. The submission cannot be accepted.
378. Mr Burnside QC submitted that the unredacted documents may reveal adverse and credible, relevant and significant material, and may demonstrate a denial of procedural fairness. However, as any such documents were not before the Attorney-General, they could not have affected his decision. As I have discussed, the principles from VEAL are not applicable to these circumstances. Mr Burnside QC was unable to identify any authority which supported his submission.
379. Mr Burnside QC was also unable to identify any authority which supported the proposition that the Attorney-General was required to obtain all relevant documents from all government departments in order to make a valid decision. Nor was Mr Burnside QC able to identify any authority which supported the proposition that the decision was vitiated by failure of the Department to provide the Attorney-General with any material that may have been beneficial to Mr Matson. While reference was made to Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3], that case is not authority for the matters contended for.
380. It must also be borne in mind that Mr Matson did not ask that either the FOI process be completed prior to the making of the Surrender Decision or that certain categories of documents be placed before the Attorney-General (apart from those identified in Mr Morris QC’s letter of 7 June 2018).
381. Mr Matson was unable to demonstrate anything more than a mere possibility that discovery might produce documents directly relevant to the issues raised in the Draft Amended Originating Application. That was acknowledged by Mr Burnside QC’s submission that, “it is basically impossible to know what bearing, if any, they would have had on the Attorney-General’s decision”.
382. It was also relevant to take into account the very late stage at which the application for discovery was made. It was made after the hearing of the substantive proceeding and after judgment had been reserved.
383. Mr Matson provided no explanation for why the application had not been made earlier. Nor was any explanation apparent on the material. Mr Matson was represented by Mr Morris QC until the day of the substantive hearing on 18 November 2019. As Mr Matson was represented by counsel and solicitor in the 11 March Discovery Application, an explanation, if there was a reasonable one, could be expected to be forthcoming. It may also be noted that Mr Matson had demonstrated the knowledge and capacity to apply for the issue of subpoenas to various Departmental officers, although that was refused by a Judicial Registrar on 15 November 2019. Mr Matson did not challenge that decision.
384. I took into account the public interest in maintaining the finality of litigation: see Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 265; Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 302-303; Bradshaw at [25].
385. For these reasons, I was not satisfied that making the order for discovery would facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible. Accordingly, I refused the 11 March Discovery Application.
the substantive Application before the Court
59 In the substantive application, Mr Matson sought the following orders:
1. A writ of prohibition and other ancillary orders as necessary to quash, and to prohibit further enforcement of, the decisions made by the Honourable Gary Humphries AO, Deputy President, Administrative Appeals Tribunal on 27 August 2020 during the interlocutory hearing in AAT matter 2020/2703 -: “BARON MATSON– AND – ATTORNEY-GENERAL’S DEPARTMENT”:
a) a decision to dismiss an application made by the applicant (Baron Phillip Matson) on 12 July 2020 for “leave to be released from the ‘implied undertaking’ referred to in paragraphs [5.2] to [5.4] in part 5 of the FREEDOM OF INFORMATION PRACTICE DIRECTIONS given under s 18B of the ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH) (the AAT Act);
b) a decision to grant an application made by the Respondent (Attorney-General’s department) n 23 June 2020 for directions pursuant to s 35(4) of the AAT Act prohibiting the publication and disclosure of certain documents; and
c) a decision to refuse an adjournment application made by the applicant on 27 August 2020, which was made during oral submissions.
2. An injunction to restrain the Administrative Appeals Tribunal (the AAT) from:
a) giving effect to the said decisions; or
b) making or purporting to make further decisions to like effect otherwise than in accordance with the AAT Act.
3. A writ of mandamus to compel a Tribunal Member of the AAT, other than the Honourable Gary Humphries AO, Deputy President, to remake the said decisions according to law and in compliance with the AAT Act.
4. Costs.
60 In support of the orders sought, Mr Matson relied on the following grounds:
a) that procedures that were required by law to be observed in connection with the making of the decisions were not observed;
b) that the decisions were not authorised by the enactment in performance of which they were purported to be made;
c) that the decisions involved an error of law;
d) that the decisions were affected by and reflect jurisdictional error; and
e) that the decisions were otherwise contrary [to] law, in that:
A. contrary [to] the AAT Act, the decisions made by the Honourable Gary Humphries AO, Deputy President on 27 August 2020 in AAT matter 2020/2703 show that he constructively failed to exercise jurisdiction by:
(i) failing to think about mandatory conciliation;
(ii) deciding irrationally; and
(iii) failing to engage with the evidence and arguments.
B. The Deputy President misunderstood the ‘Legal Test’ in determining whether:
(i) there were any “special circumstances” to warrant releasing the Applicant from the implied undertaking not to use any of the Tribunal documents for any other purpose other than AAT matter 2020/2703;
(ii) a confidentiality order ought be made under s 35(4) of the AAT Act in respect of 11 confidential documents; and
(iii) an adjournment should be granted to a self-represented Applicant.
C. The Deputy President’s decisions further invoked an error of law as there was little to no evidence to support the factual findings that: (and the findings lacked original basis)
(i) the Applicant’s application to be released from the implied undertaking be dismissed;
(ii) the Respondent (Attorney-General’s Department) be granted the confidentiality order they applied for; and
(iii) that in the Applicant’s circumstances the application for an adjournment be dismissed.
D. The Deputy President’s judgment or evaluation went beyond the range where it could permissibly have gone either way where:
(i) the true and only reasonable answer on the facts found contradicted his determination of said decisions; and
(ii) the decisions made were tantamount to a refusal to consider a matter.
E. A denial of procedural fairness occurred in connection with the making of said decisions, in that:
(i) the Applicant was not notified of the hearing being listed for 2.30 pm on 27 August 2020, whereas the Respondent (Attorney-General’s Department) was, which afforded them the opportunity to prepare written submissions by Counsel, and file ‘Witness Statements’ of various departmental officers;
(ii) the Applicant informed the Deputy President that he had only had the Respondent’s (Attorney-General’s Department) material and submissions served on him that morning, and that that was the first time he was notified of the hearing being listed, and further raised his lack of legal resources, and his desire for an adjournment to prepare written submissions, but despite this the adjournment was objected to by Dr Laura Hilly of Counsel and dismissed by the Deputy President;
(iii) in all the circumstances, which were extraordinary, the Deputy President showed a lack of respect for the dignity of the Applicant by refusing the adjournment and stating that “… his applications argument would be the same if he had time to prepare written submissions or not, or time to properly consider the Respondent’s (Attorney-General’s Department) material and submissions, or not[”]; and
(iv) the Applicant was not properly heard in relation to his arguments subject of the interlocutory hearing on 27 August 2020, nor was he properly explained the Tribunal’s process and procedure, or explained what options were available to him, which as a self-represented applicant, he was entitled to, the Deputy President even refuse to indicate whether or not the Applicant was permitted to appeal the decision made by the Deputy President.
F. The Deputy President’s decision displayed an apprehension of bias on the basis that:
(i) it appeared the Deputy President had pre-judged the issues of the implied undertaking and the confidentiality order by saying the Applicant’s arguments would be the same if he had an adjournment or not; and
(ii) the Deputy President did not properly consider the relevant documents subject of the proceeding, including the confidential documents and the actual documents captured by the Applicant’s FOI requests, and how they were applicable and critical to the Applicant’s Federal Court of Australia proceedings, which further showed that the Deputy President had ore-judged the issues to be determined (probably as he had only read the Respondent’s (Attorney-General’s Department) material and submissions before the hearing[)].
G. The Deputy President’s decisions were infected by unreasonableness or serious irrationality or illogicality, in that:
(i) there was a failure to properly ensure that the relevant evidence and documents (in an unredacted format) were before the Tribunal on 27 August 2020, which resulted in a failure to give proper, genuine or realistic consideration to the evidence in making the decision that the Deputy President did, including the confidential documents; and
(ii) no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide as the Deputy President did, and in view of the Deputy President’s failure to observe the requirement that his satisfaction or opinion about the existence of a matter, in particular a jurisdictional fact, be reasonably formed, not granting the Applicant’s adjournment was “WEDNESBURY” unreasonableness.
61 Mr Matson also claimed the following interlocutory relief:
5. An order staying or suspending the said decisions pending the hearing and determination of this application.
6. An interlocutory injunction to restrain the AAT from giving effect to the said decisions (or continuing to do so) pending the hearing and determination of this application.
7. In accordance with Rule 20.35(1) of the FEDERAL COURT RULES 2011 (CTH) an order for “Production to Court” stating that the Respondent (the Honourable Gary Humphries AO, Deputy President, AAT) produce the following documents to the Court (which documents are in the AAT’s control and are related to this proceeding) at a date agreed by the parties:
a) unredacted copies of the s 37 Tribunal Documents filed by the Attorney-General’s Department in AAT matter 2020/2703 (including the documents subject of the Attorney-General’s Department proposed “confidentiality order” made under s 35 of the AAT Act);
b) unredacted copies of all other material and submissions filed by the Attorney-General’s Department in AAT matter 2020/2703 (including the Attorney-General’s Department ‘outline of submissions’ dated 26 August 2020 by Dr Laura Hilly of Counsel; the ‘witness statements’ of Antony Catt, Director, Freedom of Information and Parliamentary Section, Attorney-General’s Department; and the ‘witness statement’ of Lisa Hemingway, Director, Litigation Unit, International Unit Division, Attorney-General’s Department);
c) unredacted copies of all correspondence sent or received by the AAT in relation to AAT matter 2020/2703 from or to both parties (including the ‘notice’ of the interlocutory hearing being listed for 2:30 pm on 27 August 2020 sent by the Canberra Registry, AAT, and the earlier ‘notice’ that purported to list the hearing at an earlier time); and
d) a copy of the Tribunal transcript for the hearing that occurred on 27 August 2020 before the Honourable Gary Humphries AO, Deputy President, AAT in AAT matter 2020/2703; and
e) a copy of the ‘Direction’ made, and ‘Reasons’ for the decisions made by the Honourable Gary Humphries AO, Deputy President, AAT for the interlocutory hearing on 27 August 2020, in AAT matter 2020/2703, including the ‘Decision’ dated 1 September 2020 and 3 September 2020.
8. an order for “Production to Court’ stating that the Commonwealth Attorney-General’s Department produce the following documents to the Court (which documents are in the Attorney-General’s Department’s control and are related to this proceeding) at a date agreed by the parties:
a) unredacted copies of the “original documents” identified in Attorney-General’s Department FOI decision letters (AGD reference: FOI18/023), signed Erin Wells, a/g Assistant Secretary, dated 4 May 2018;
b) unredacted copies of the “original documents” identified in Attorney-General’s Department FOI internal review decision letters (AGD reference: FOI18/023), signed Stephen Bouwhuis, Assistant Secretary, dated 5 July 2018;
c) unredacted copies of the “original documents” identified in Attorney-Generals Department FOI revised decision letters (AGD reference: FOI18/023, OAIC reference: MR18/00597), signed Erin Wells, a/g Assistant Secretary, International Cooperation Unit, dated 4 July 2019;
d) unredacted copies of the “original documents” identified in Attorney-general’s Department FOI decision letters (AGD reference: FOI18/082), signed Stephen Bouwhuis, Assistant Secretary, dated 16 August 2018;
e) unredacted copies of the “original documents” identified in Attorney-General’s Department FOI revised decision letter (AGD reference: FOI18/082, OAIC reference: MR18/00637), signed Erin Wells, a/g Assistant Secretary, International Cooperation Unit, dated 4 July 2019;
f) unredacted copies of the “original documents” identified in Attorney-General’s Department FOI decision letter (AGD reference: FOI18/202), signed Jennifer Perrin, a/g Assistant Secretary, dated 7 November 2018;
g) unredacted copies of the “original documents” identified in Attorneey-General’s Department FOI revised decision letter (AGD reference: FOI18/202, OAIC reference: MR18/00930), signed Erin Wells. a/g Assistant Secretary, International Cooperation Unit, dated 4 July 2019;
h) unredacted copies of the “original documents” identified in Attorney-General’s Department FOI decision letter (AGD reference: FOI18/203), signed Jennifer Perrin, a/g Assistant Secretary, dated 8 November 2018;
i) unredacted copies of the “original documents” identified in Attorney-General’s Department FOI revised decision letter (AGD reference: FOI18/203, OAIC reference: MR18/00929), signed Erin Wells, a/g Assistant Secretary, International Cooperation Unit, dated 4 July 2019;
j) unredacted copy of the “original document” dated 2007-2009 in relation to the Applicant and provided by an unknown foreign State, as identified in Attorney-General’s Department submissions dated 3 July 2019 for the Information Commissioner review of FOI decision FOI18/019;
k) unredacted copies of the 2 x hardcopy pages – “extradition related” documents dated 2005 in relation to the Application, as detailed on page 7 of Attorney-General’s Department letter dated 20 December 2019;
l) unredacted copy of the Office of the Australian Information Commissioner (the OAIC) letter or email dated 5 December 2019 sent to the Attorney-General’s Departent requesting that the Attorney-General’s Department prepare “annotated schedules of documents” for FOI revised decisions FOI18/023, FOI18/082, FOI18/202 and FOI18/203 indicating which documents had been newly identified and reconciling the original and revised decision documents;
m) unredacted copy of the Attorney-General’s Department letter or email dated 10 December 2019 agreeing to prepare the “annotated schedules of documents” for FOI revised decisions FOI18/023, FOI18/082, FOI18/202 and FOI18/203, sent to the OAIC;
n) unredacted copy of the Attorney-General’s Department email dated 21 February 2020 sent to the OAIC providing the “annotated schedules of documents” for FOI18/202 and FOI18/203; and
o) unredacted copys [sic] of the emails (unknown dates) from the Attorney-General’s Department to the OAIC providing copies of the “original documents” for FOI18/023 (decision dated 4 May 2019 and for internal review decision date 5 July 2018), FOI18/082 (decision dated 16 August 2018), FOI18/202 (decision dated 7 November 2018) and FOI18/203 (decision dated 8 November 2018) for the purpose of Information Commissioner reviews (IC reviews) MR18/00597 (FOI18/023), MR18/00637 (FOI18/082), MR18/00930 (FOI18/202), MR18/00929 (FOI18/203).
9. An order for “Production to Court” stating that the OAIC produce the following documents to the Court (which documents are in the OAIC’s control and are related to this proceeding) at a date agreed by the parties:
a) unredacted copies of the “original documents” provided to the OAIC by the Attorney-General’s Department for the purpose of IC reviews MR18/00597 (FOI18/023), MR18/00637 (FOI18/082), MR18/00930 (FOI18/202) and MR18/00929 (FOI18/203);
b) unredacted copies of the “teleconference notes” of Carl English, Review Adviser (Legal), Freedom of Information, OAIC and Emma Liddle, Director, Freedom of Information, OAIC from teleconference between the OAIC and the Attorney-General’s Department on 12 March 2020 in relation to the Applicant’s IC review matters;
c) unredacted copy of the email sent to the OAIC by the Attorney-general’s Department dated 12 March 2020 (including attachments) which email provided additional information about the Attorney-General’s Department record-keeping systems including the electronic document management system “Content Manager”; and
d) unredacted copies of the Attorney-General’s Departments “Search Guidance” for the following IC reviews – MR17/00619 (FOI17/034); MR18/00553 (FOI18/067); MR18/00554 (FOI18/019); MR18/00597 (FOI18/023); and MR19/00688 (FOI19/102) provided to the OAI in an email from the Attorney-General’s Department dated 25 March in five (5) attachments, PDF files.
62 At the hearing of the substantive application I raised with both Mr Matson and Counsel for the respondent, Mr McKechnie, the issue of duplication of litigation. In particular, I queried whether the material the subject of the application in the Tribunal (and the subject of the present application) was the same, or substantially the same, as the material the subject of Mr Matson’s discovery applications heard and determined by Rangiah J in QUD107/2019.
63 Mr McKechnie submitted, in summary, that the present proceedings constituted unnecessary duplication of litigation, because relevant issues in respect of the material the subject of the present proceedings had already been decided by Rangiah J in Matson v Attorney-General [2020] FCA 1558.
64 During the hearing the following exchange took place between Mr Matson and me:
MR MATSON: I was seeking discovery before Rangiah J of all documents.
HER HONOUR: Right.
MR MATSON: So in the sense of overlap, if you mean that – okay, if all documents in the possession of the
HER HONOUR: Including the documents that are before the AAT – in relation – in respect of which you sought relief before the AAT, is that right.
MR MATSON: Yes. That’s correct.
HER HONOUR: Right. Okay. So could you not, when you went to Rangiah J, have sought an order for unredacted documents to be discovered. Why couldn’t you do that before Rangiah J?
MR MATSON: I did seek an order for discovery of unredacted documents before Rangiah J.
HER HONOUR: Okay. And a waive of your implied undertaking: couldn’t you have also sought that before Rangiah J?
MR MATSON: Well, what would be the purpose of seeking
HER HONOUR: I wonder that myself, Mr – Mr Matson.
MR MATSON: If you sought unredacted versions of all documents before the
HER HONOUR: Right.
MR MATSON: Why do I need an implied undertaking release?
HER HONOUR: That’s exactly right. So what I’m saying is – do you understand where I’m going. Just say those documents are A, B and C. Just say that, say, A and B are – say if they all have redactions. You’re seeking to have the unredacted versions of those documents produced to you in the AAT proceedings. Now, you’re off to see Rangiah J in relation to another matter. You’re seeking documents including A, B and C unredacted. So hasn’t that already been dealt with by Rangiah J, who said, “No.” And you’re now appealing that, isn’t that right, Mr Matson. I’m just wondering if we’re just duplicating litigation – or you’re duplicating litigation.
MR MATSON: Well, you need to consider why Rangiah J refused it. It
HER HONOUR: No, no. Sorry, Mr Matson. I don’t need to decide – consider why Rangiah J – the Appeal Court will be looking to see why Rangiah J refused discovery. I’m just wondering what is the point of me making a decision about documents which have already been ruled on by Rangiah J. In fact, it’s inappropriate for me to make a ruling about – in relation to discovery about documents which have already been the subject of discovery rulings by Rangiah J. Surely that’s the case, Mr Matson.
MR MATSON: Well, to the extent that – I mean, if I, as a citizen, am entitled to make an application in the AAT and if I’m – if I’m not afforded procedural fairness, I’m entitled to review that decision.
HER HONOUR: And it has been superseded by the decision – so do you understand what I’m saying – do you understand what
MR MATSON: I understand what you’re saying.
HER HONOUR: Sorry, just – no. Just let me say this. Do you understand when I say – when I say inutile?
MR MATSON: Yes.
HER HONOUR: Right. Isn’t
MR MATSON: No utility.
HER HONOUR: That’s right. So isn’t there a distinct lack of utility arguably relevant to this particular application, when matters have been – matters have moved on in relation to the decision of Rangiah J. Now, look, I could be misunderstanding this, Mr Matson. But that’s what I’m getting from you
MR MATSON: Well
HER HONOUR: at the moment.
MR MATSON: I think you’ve maybe misunderstood me then, because I certainly have not made that submission. And I don’t think
HER HONOUR: No, no.
MR MATSON: I don’t think the circumstances
HER HONOUR: I’m not suggesting you made
MR MATSON: indicate that.
HER HONOUR: that submission. I’m suggesting that’s the impression I’m getting from the submissions that you’ve made. But again, look, please don’t think I’m making a decision at the moment, Mr Matson. I’m trying to ask you questions as to what the utility is when there has already been a hearing by Rangiah J, which as you had – which you did submit was, among other things, an application for discovery of these documents.
MR MATSON: Well, let me propose this to you, your Honour. If you make an order saying that the AAT heard
HER HONOUR: Right.
MR MATSON: and you send it back to the AAT for them to redetermine the
HER HONOUR: And what’s the point of that?
MR MATSON: Well, let’s say for the – for example, that it came before a different president or a
HER HONOUR: Right.
MR MATSON: different member.
HER HONOUR: And just say they said yes, then what?
MR MATSON: Well, if they release me from the implied undertaking
HER HONOUR: Right.
MR MATSON: I would then have the ability to utilise these documents in my submission.
HER HONOUR: In what?
MR MATSON: In the Federal Court proceedings.
HER HONOUR: In what Federal Court proceedings?
MR MATSON: In the appeal, in
HER HONOUR: Right.
MR MATSON: I have other – another application involving
HER HONOUR: But didn’t – wait a minute. In the appeal – but doesn’t that – wouldn’t that conflict with what Rangiah J has decided? How can you possibly – you would have to seek leave from the Appeal Court to introduce new documents contrary to Rangiah J said. I’m just having some difficulty understanding how any of that would work, Mr Matson.
MR MATSON: Well, I
HER HONOUR: As I said, I’m just wondering if you’re duplicating what has already been decided.
MR MATSON: I don’t think so. I mean, I think the rules – I think the rules of the Administration Appeals Tribunal don’t change. I mean, if there are documents
HER HONOUR: Right.
MR MATSON: before the tribunal that you want to use, whether it’s in an appeal proceeding or a originating application, you can’t just – you haven’t got a – a rite of passage just to use those documents automatically in any proceeding. You need to be released from the implied undertaking.
HER HONOUR: All right. Then another question is – and I’m just wondering – genuinely wondering, Mr Matson – what is to stop you seeking leave of the Appeal Court to introduce – to rely on these documents?
MR MATSON: Well
HER HONOUR: You can seek the leave of the Appeal Court. Why are we – why are you wasting time, arguably, in relation to the – what the AAT has decided when, if it’s the same documents that – with respect to which you were refused discovery by Rangiah J – and I understand that they are – why aren’t you seeking the leave of the Appeal Court and why isn’t this a key issue before the Appeal Court?
MR MATSON: Well, it very well may be.
HER HONOUR: But then, why aren’t you there rather than here. Also, please don’t think I’m, sort of, trying to drive you away, Mr Matson. I’m not.
MR MATSON: No, no. That’s
HER HONOUR: But I’m just wondering, isn’t that where you should be running this.
MR MATSON: Well, to my mind there has been an injustice done in the AAT. I…
(Transcript pp 30-34)
65 As Drummond J observed in Great Barrier Reef Marine Park Authority v Forgie [1999] FCA 1473 at [21]:
... That the appeal Court has a discretion, even after litigation has been concluded by a final judgment, to refuse to deal with a decision not directly affecting the rights and obligations of the parties is established by cases such as Beitseen v Johnson (1989) 29 IR 336 and R v Secretary of State for Home Department; ex parte Salem [1999] UKHL 8; [1999] 2 WLR 483.
66 In particular I note observations by the Full Court in Beitseen v Johnson (1989) 29 IR 336 at 338, including:
In our view, a power not to proceed further with an appeal, similar to that examined in Hole v Insurance Commissioner, is conferred on this Court by implication from s 23 of the Federal Court of Australia Act 1976 and O 20 r 2 of the Federal Court Rules. (See eg Parsons v Martin (1984) 5 FCR 235; 58 ALR 359 as explained and applied by Toohey J in Hughes v Western Australian Cricket Association (Inc) (1986) 66 ALR 541).
We have been persuaded to exercise that power in this case primarily because the passage of time has, in the circumstances, deprived the issues in controversy of real practical significance…
A related consideration which has weighed with the Court in the exercise of its discretion arises from the constraints of time and resources to which the Court is presently subject. When the judicial system is in an apparently permanent state of stress, and courts are finding it increasingly difficult to keep up with their work, they cannot afford the luxury of spending time on interesting questions of law which, because they have been overtaken by events, have become of academic interest only. With so many cases of real importance to litigants, and often to the public generally, waiting to be heard or for judgment to be given, others must be discouraged from commencing or pursuing litigation which can have little or no practical result — particularly if that litigation is being funded in whole or in part by the taxpayer.
67 See also for example Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438 at [18].
68 In this case, it is clear that the sole purpose of Mr Matson’s proceedings in the Tribunal (now the subject of this application before me) was to facilitate the production of documents in QUD107/2019. However:
Those proceedings have been heard and determined by Rangiah J. To the extent that the purpose of the proceedings in the Tribunal was for Mr Matson to rely on documents in the Federal Court proceedings before Rangiah J, it cannot be said that there remains any purpose to any continuation of those Tribunal proceedings, either by remittal or review.
In the proceedings before Rangiah J it is clear that his Honour actually considered the admission of documentation the subject of the proceedings in the Tribunal, but concluded that an order for discovery should not be made. To that extent, the issues Mr Matson sought to agitate in the Tribunal were clearly overtaken by the Federal Court proceedings in QUD107/2019. Although Mr Matson disputed that this was the case:
.1 I accept the submission to the contrary by Mr McKechnie.
.2 A cursory comparison of the orders sought by Mr Matson in the present proceedings, with orders sought by Mr Matson before Rangiah J, reveals extensive overlap of material the subject of consideration.
69 Mr Matson has appealed the decision of Rangiah J, including in respect of discovery orders. As I put to him during the hearing, a live issue before the Full Court in that appeal concerns the discovery orders made by Rangiah J in relation to documentation previously sought by Mr Matson in the Tribunal (and now before me).
70 I also consider that there is the serious risk of inconsistent decisions being made, if the present proceedings are remitted by me (as Mr Matson requests) back to the Tribunal, in circumstances where Rangiah J has already made findings concerning the production of those documents in QUD107/2019.
71 Before me, Mr Matson made much of his feelings of injustice towards him in respect of the decision of Tribunal. He described his motivation for the present substantive application as being that
… as a citizen, [he was] entitled to make an application in the AAT and if I’m – if I’m not afforded procedural fairness, I’m entitled to review that decision
(Transcript p 31, ll 17-19).
72 However, even if the decision of the Tribunal was wrong – which is by no means apparent – it is in my view clear that the statutory appeal from the decision of the Tribunal is moot. The proceedings in the Tribunal were overtaken by the hearing (and decision) in QUD107/2019. A decision in Mr Matson’s favour by me would not assist him in the application in QUD107/2019, which has been determined. It would also not assist him in his appeal from the decision of Rangiah J.
73 For this reason alone, I consider that the originating application should be dismissed.
74 Having so found, however, in the interests of completeness I will examine the grounds of Mr Matson’s substantive application. I note that in his submissions, Mr Matson addressed the grounds for his substantive application by reference to specific principles rather than individual grounds. The first respondent replicated this approach. In the interests of properly examining the grounds and the submissions in support, I will similarly adopt that approach.
Ground 1: the Tribunal constructively failed to exercise jurisdiction (point A of the grounds of the application)
75 In submissions filed 17 June 2021, Mr Matson submitted that the decisions made by the Tribunal involved an error of law by the Tribunal constructively failing to exercise its discretion, by:
a) Failing to think about mandatory considerations, including:
• The unredacted contents of the 11 confidential documents subject of the Confidentiality Application, in particular the parts claimed exempt under s 33 of the FOI Act;
• The unredacted contents of the s 37 tribunal documents subject of the Implied Undertaking Application;
• My legitimate and well-founded purpose for utilising the 11 confidential documents, including the unredacted parts of those documents (the parts where no exemption was claimed) and the likely contribution of the documents in achieving justice in the Federal Court proceedings (emphasis added); and
• Whether without an adjournment being granted I could be afforded my fundamental legal right to natural justice, including the right to be properly heard and that there be no apprehension of bias in the making of the decision, (i.e. justice must not only be served but be seen to be served);
b) Deciding irrationally, on the basis that he failed to give proper, genuine and realistic consideration to the 11 confidential documents, and to the s 37 Tribunal Documents in exercising his discretion.; and
c) Failing to engage with the evidence, namely the 11 confidential documents, and the section 37 Tribunal Documents, including my Supplementary IC Review Submissions, the First Respondent's Witness Statements of Lisa Hemmingway and Antony Catt, and the communications sent between the AAT Canberra Registry and the Corrections Officer emailed at Arthur Gorrie Correctional Centre.
(Emphasis in original).
76 Section 35 of the AAT Act materially provides:
(4) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i) information that comprises evidence or information about evidence;
(ii) information lodged with or otherwise given to the Tribunal.
(5) In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
77 At [8]-[16] of its decision the Tribunal examined the application of the first respondent seeking a direction under s 35(4) of the AAT Act prohibiting publication and disclosure of the redacted portions of 11 confidential documents which otherwise made up the documents produced to the Tribunal. The Tribunal member noted that the first respondent claimed that the documents included material of a kind that would expose the degree and type of communication between the first respondent and an overseas enforcement agency, and that this claim was supported by evidence tendered by the first respondent.
78 The Tribunal granted the application sought by the first respondent, noting:
Section 33 of the FOI Act which identified when a document was an exempt document.
Section 63 of the FOI Act which provided that the Tribunal must have regard to, inter alia, the necessity of avoiding the disclosure to the applicant of exempt matters contained in a document to which the proceedings related.
79 The Tribunal continued:
14. The issue to be determined in the substantive proceedings presently before the Tribunal is whether the material to which Mr Matson seeks access is exempt from disclosure pursuant to s 33. Section 63 makes it clear that, in considering an application for a confidentiality order, the Tribunal must avoid disclosing material which may ultimately in those proceedings be found to be an exempt document.
15. This is precisely the situation the Tribunal confronted on 27 August. In the substantive application the Tribunal may ultimately find that the documents in question are not exempt documents, but to refuse to make a confidentiality order then over those documents, or parts of documents, which it is claimed are protected from disclosure by s 33 would be to obviate the whole purpose of the substantive application. Clearly, if a respondent claims that a document is exempt from disclosure, the document must remain undisclosed to the party seeking it unless and until the proceedings are finally resolved in the applicant’s favour.
16. Nor do I accept Mr Matson’s submissions that he and his legal representative must be treated differently for these purposes. Under ordinary principles of a counsel/client relationship, disclosure to counsel is disclosure to his or her client
80 In light of these reasons it is clear that Mr Matson’s contention that the Tribunal constructively failed to exercise its jurisdiction in respect of the confidentiality application has no basis. Rather, plainly the Tribunal addressed and decided issues relevant to this application. The fact that the Tribunal made findings unfavourable to Mr Matson does not mean it constructively failed to exercise its jurisdiction.
Ground 2: the Tribunal misunderstood relevant legal tests (point B of the grounds of the application)
81 Mr Matson submitted that the Tribunal’s decision involved an error of law as the Tribunal misunderstood the “legal test” in determining whether;
a) There were "special circumstances" to warrant releasing me from the implied undertaking not to use any Tribunal documents for any other purpose other than the AAT matter 2020/2703. He misunderstood the legal test by not considering that my ability to utilise the documents in support of my discovery application would assist in achieving justice in my Federal Court proceeding QUD107/2019, along with various other "special circumstances" I made oral submissions about (See transcript of 27 August AAT Hearing);
b) In making a confidentiality order in respect of the 11 confidential documents. He misunderstood the legal test, by not considering the contents of each of the 11 confidential documents to determine if a confidentiality order was warranted; and
c) In refusing an adjournment to a self-represented litigant. He misunderstood the legal test by not giving sufficient weight to the apparent disadvantage occasioned by the failure to give prior notice to a party of the hearing and where submissions, witness statements, and a large bundle of case law was served just hours before the hearing was due to begin, and the party had not been given a fair opportunity to seek legal advice and/or properly consider, and file submissions and evidence in response.
82 In relation to the confidentiality order, it is plain from the Tribunal’s reasons at [8]-[16] that the Tribunal understood the relevant legal principles.
83 In relation to Mr Matson’s application for release from the implied undertaking, the Tribunal gave extensive consideration to the submissions of both parties. I note in particular the Tribunal’s reasons at [20]-[25] of its reasons for decision. The Tribunal clearly understood the nature of Mr Matson’s application for release from the implied undertaking, and the context in which it was made. However, the Tribunal rejected that application. This does not mean, however, that the Tribunal did not understand it.
84 In relation to Mr Matson’s application for an adjournment, the Tribunal gave extensive consideration to the submissions of Mr Matson and relevant facts. It continued:
33. Notwithstanding the highly unsatisfactory way in which he was advised of the hearing, the Tribunal did not consider that an adjournment was appropriate. In relation to the confidentiality application, the Tribunal is aware that the Department has a responsibility under s 37 of the AAT Act to provide relevant documents within the timeframe provided for in the legislation (generally 28 days). To comply with those provisions the Department needed its application for confidentiality dealt with. For the reasons already given the Tribunal considered it appropriate to adopt the "default" position and grant the application in line with the provisions of s 63 of the FOI Act. However, doing so does not prevent Mr Matson for making a further application at a later stage of these proceedings if some new argument, discovered through further research, becomes apparent to him. Resolving this matter as the Tribunal did on 27 August 2020 therefore occasioned no disadvantage to Mr Matson that cannot be later remedied.
34. In relation to the application for release from the implied undertaking, there appeared to be an urgency which worked against the desirability of an adjournment. Mr Matson had pressed for a decision to release him from the implied undertaking to assist him, as he saw it, in his Federal court proceedings the following day. For the reasons already provided, the Tribunal regarded an order for release from the implied undertaking as having the potential to cut across the proceedings in the Federal Court. Indeed, Mr Matson made it clear at the hearing that if I acceded to his request for an adjournment he would use that fact as the foundation for an application to adjourn the proceedings before Rangiah J the following day. I was cautious about making an order which might prove an inconvenience to his Honour in that context. As already indicated, I considered in any case that no disadvantage would be visited on Mr Matson, by refusing his application, which could not be remedied the following day by his Honour.
35. There was nothing time critical about the annotated schedules application, however, and accordingly I offered to adjourn that application (an offer which Mr Matson ultimately declined).
36. I note that the question of release from the implied undertaking can be revisited if and when arguments present themselves to Mr Matson which would warrant the issue being reopened.
37. Finally, I reject the argument that the provision of written submissions by the Department in some way disadvantaged Mr Matson. Logically, he would have been more disadvantaged had the arguments been presented only orally at the hearing and had he not had two hours or so beforehand to digest them in written form.
85 The decision of the Tribunal to refuse an adjournment was an exercise of discretion. As Dixon, Evatt and McTiernan JJ observed in House v The King (1936) 55 CLR 499; [1936] HCA 40:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
86 Plainly a denial of procedural fairness may result in a decision made in excess of jurisdiction, and a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [19], [48], Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611 [40]; [2002] HCA 11.
87 To paraphrase the High Court in House v The King, whether I or anyone else in the position of the Tribunal would have taken a different course from the Tribunal in relation to the issue of adjournment is irrelevant. In this case I am satisfied that the Tribunal applied appropriate principles, and gave proper consideration to Mr Matson’s application for an adjournment. Indeed, I note that the Tribunal offered to adjourn his application for annotated schedules, which offer it appears Mr Matson rejected.
Ground 3: The Tribunal made a decision based on little to no evidence to support the factual findings (point C of the grounds of the application)
88 Mr Matson submitted that the Tribunal’s decisions further involved an error of law as there was little to no evidence to support the factual findings, and the findings lacked a logical basis, that:
a) My Implied Undertaking Application be dismissed on the basis that the Deputy President made the factual findings that:
I. It was clear that release would not have the effect that I apparently sought from it;
II. No special circumstances have been pointed to by me which would obviate the usual rule that a party not use documents provided to them under compulsion for any other purpose than the purpose for which they were given;
III. The implied undertaking would have had the potential to undermine the processes of the Federal Court; and
IV. ... “making such an order would be of no utility, in that the same documents are before the Federal Court and it is perfectly capable of determining their fate in the context of Mr Matson's application for discovery.”.
b) The Attorney-General's Department (the Respondent) be granted the Confidentiality Order applied for on the basis that the Deputy President made the factual findings that:
I. He did not have to consider the contents of the 11 confidential documents in determining whether to make the order;
II. It should be accepted that the substance of the 11 confidential documents remained fully comprehensible despite the redactions;
III. The normal counsel/client relationship, would prohibit the possibility of counsel viewing confidential documents; and IV. The Department's witness statement's and submissions should be accepted as being correct, particularly after they had significantly recoiled from the originally much larger number of documents subject of the confidentiality order.
c) My Adjournment Application be dismissed on the basis that the Deputy President made the factual findings that:
I. He entertained the application for adjournment in respect of both matters, namely the Implied Unde1iaking Application and the Confidentiality Application, when he had already granted the Confidentiality Application;
II. The Tribunal had made it clear at an earlier interlocutory hearing in the same matter that it wished to resolve he parties' various interlocutory applications prior to the hearing before Rangiah J on 28 August 2020;
III. The email on 25 August 2020 advising the interlocutory hearing would be held at 9.00am on 27 August 2020 was sent to both parties, and a further email was sent to both parties at later the same day revising the starting time for the interlocutory hearing to 2.30pm;
IV. Communication with Mr Matson was sometimes achieved with difficulty, and the Tribunal had been apprised that sometimes these communications did not reach him, or did not reach him in a timely way. However, there were few alternative ways of communication;
V. The making of the Confidentiality Order does not prevent Mr Matson from making a further application at a later stage of the proceedings if some new argument, discovered through further research, becomes apparent to him, therefore resolving this matter as the Tribunal did on 27 August 2020 occasioned no disadvantage to Mr Matson that cannot be later remedied;
VI. In relation to the application for release of the implied undertaking, there appeared to be an urgency which worked against the desirability of an adjournment;
VII. The Tribunal regarded an order for release from the implied undertaking as having the potential to cut across the proceedings of the Federal Court; and VIII. In any case no disadvantage would be visited on Mr Matson, by refusing his application, which could not be remedied the following day by his Honour (Justice Rangiah).
89 In my view this ground has no substance. In particular:
it was open to the Tribunal to make its findings in respect of Mr Matson’s application for release from the implied undertaking, including the uncontested prospect that the proceedings could “cut across” the imminent Federal Court hearing in QUD107/2019;
the first respondent’s application for confidentiality orders was supported by filed evidence to which the Tribunal referred at [9] of its reasons;
the factual findings of the Tribunal, including in respect of such matters as the ease or otherwise of communicating with Mr Matson, were open to the Tribunal;
it is plain that the Tribunal had regard to submissions and evidence of Mr Matson, including by specifically referring to statements of Mr Matson made during the hearing before the Tribunal; and
the decision of the Tribunal to refuse an adjournment was in the proper exercise of its discretion.
Ground 4: The Tribunal exercised judgment or evaluation that went beyond the range where it could permissibly have gone either way (point D of the grounds of the application)
90 Mr Matson submitted that the Tribunal’s decisions were tainted by an error of law, namely that the Tribunal’s judgment or evaluation went beyond the range where it could permissibly have gone either way where:
a) The true and only reasonable answers on the facts found contradicted the Deputy President's determination of said decisions, especially the fact that the Deputy President knew I had not been notified of the hearing and therefore could not possibly have been in a position to have a fair hearing, especially in consideration of the material and submissions filed by the Respondent; and
b) The Deputy President's Decisions were tantamount to a refusal to consider a matter, on the basis that I was not properly or fairly heard in relation to the applications because I was given no notice of the hearing, and denied an adjournment to prepare, and he therefore made decisions that went beyond the range of the either way margin.
91 The Tribunal was clearly aware of Mr Matson’s personal circumstances as a litigant in person, and further of the brevity of notice given to him of the hearing. However, in the circumstances the Tribunal considered the better course was to proceed with the hearing. In my view this approach was open to the Tribunal.
92 This ground has no merit.
Ground 5: The Tribunal denied the applicant procedural fairness (point E of the grounds of the application)
93 The applicant submitted that the Tribunal’s decisions were affected by and reflected jurisdictional error, namely a denial of procedural fairness, on the basis that:
a) I was not notified of the hearing being listed for 2.30pm on 27 August 2020, whereas the Respondent was notified, which afforded them the opportunity to prepare written submissions by Counsel, and file witness statements of senior departmental officers;
b) I had informed the Deputy President that I had only had the Respondent's material and submissions served on me that morning, and that that was the first time that I was notified of the hearing being listed, and further raised my lack of legal resources, and my desire for an adjournment to prepare written submissions, but despite this, the adjournment was objected to by Dr Hilly and refused by the Deputy President;
c) In all the circumstances at the 27 August AAT Hearing, which were extraordinary, the Deputy president showed a complete lack of respect for my dignity by refusing the adjournment and stating that my applications argument would be the same if I had time to prepare written submissions or not, or time to properly consider the Respondent's material and submissions or not; and
d) I was not properly heard in relation to my arguments subject of the applications determined at the 27 August AAT Hearing, nor was I properly explained the Tribunal's processes and procedures, or explained what options were available to me, which as a self-represented litigant I was entitled to, the Deputy President even refused to indicate whether or not I could appeal his decisions to the AAT and/or to the Federal Court.
94 For reasons I have already given, I am not persuaded that the applicant was denied procedural fairness by the Tribunal, that the Tribunal showed a “complete lack of respect for [his] dignity” in refusing the adjournment, or that the Tribunal failed to properly hear Mr Matson’s submissions.
Ground 6: the Tribunal was biased (point F of the grounds of the application)
95 Mr Matson submitted that the Tribunal’s decisions were affected by and reflected jurisdictional error, namely that they displayed an apprehension of bias on the basis that:
a) it appeared the Deputy President had pre-judged the issue of the Implied Undertaking Application and Confidentiality Application by saying that my argument's would be the same if I had an adjournment or not;
b) the Deputy President in exercising his discretion did not properly consider the relevant document's subject of the applications, including the 11 confidential documents, and the s 37 Tribunal Documents, which contained the documents captured by my original FOI requests, and how those documents were critical to my Federal Court proceedings, which further showed that the Deputy President had pre-judged the issues to be determined, most likely because he had only considered and read the Respondent's written submissions and evidentiary material; and
c) An informed hypothetical observer might apprehend that the Deputy President might have been impartial and pre-judged certain issues in making his decisions, on the basis that the adjournment was not granted to allow me the opportunity to properly consider the Respondent's submissions, witness statements, and a large bundle of case law served just hours before the hearing was due to begin, and where I had not been given a fair opportunity to seek legal advice and/or properly consider, and file submissions and evidence in response.
d) An informed hypothetical observer might apprehend that the Deputy President might have been impartial on the basis that only one party was permitted to file written submissions and evidence in support of the applications, while the other was refused the opportunity to do so.
96 As the High Court explained in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; [2011] HCA 2 the relevant question for consideration of an allegation of apprehended bias is whether a fair-minded lay observer aware of the circumstances in which the decision-maker made its finding would have an apprehension, firmly established on reasonable grounds, that the decision-maker reached its findings other than impartially. This approach was recently reiterated by the Full Court in GetSwift Limited v Webb [2021] FCAFC 26 in the following terms:
27. The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question he or she is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (‘Ebner’) at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ), applied in CNY17 v Minister for Immigration [2019] HCA 50; (2019) 375 ALR 47 (‘CNY17’) at [17]-[18] (Kiefel CJ and Gageler J); [50] (Nettle and Gordon JJ); and [132] (Edelman J)…
28. Whilst a precautionary approach is to be observed, the cases emphasise that an allegation of apprehension of bias must be “firmly established”: see, eg, Reece v Webber [2011] FCAFC 33; (2011) 192 FCR 254 at [45] (Jacobson, Flick and Reeves JJ) citing Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (‘Re JRL’) at 352 (Mason J). The reference to “firmly established” originated in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553 (Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ). A conclusion of apprehended bias “is not to be reached lightly”: see CNY17 at 61 [56] (Nettle and Gordon JJ) citing Re JRL at 371 (Dawson J).
97 The Tribunal explained in its decision the urgency of the hearing, which worked against the desirability of an adjournment (at [34]). It appears that the Tribunal sought to notify both parties of the time and date of the hearing, however for unknown reasons it appears that Mr Matson was only told of the hearing a few hours prior to its commencement. The Tribunal accepted that the manner in which Mr Matson was advised of the hearing was “highly unsatisfactory”, and further noted that Mr Matson claimed to be disadvantaged by the late notice of the hearing. In the circumstances, however, the Tribunal did not consider that an adjournment was appropriate.
98 The Tribunal also noted that Mr Matson had had the advantage of seeing the first respondent’s written submissions for several hours prior to the hearing. It was open to the Tribunal to form that view.
99 I note, however, that in light of the absence of time criticality of the annotated schedules application, the Tribunal suggested that that application be adjourned, which Mr Matson opposed.
100 The Tribunal had regard to the material before it, heard the parties, and made its decision. I am not satisfied that a fair-minded lay observer aware of the circumstances in which the Tribunal made its finding would have an apprehension, firmly established on reasonable grounds, that the Tribunal reached its findings in respect of these proceedings, other than impartially.
101 I take this view notwithstanding the mistaken belief on the part of the learned Deputy President that Mr Matson “has been sentenced to a term of imprisonment”. In Matson v Attorney-General [2020] FCA 1558 Rangiah J observed that:
on 1 February 2019 the Acting Commonwealth Attorney-General determined pursuant to s 22 (2) of the Extradition Act 1988 (Cth) that Mr Matson be surrendered to the United States of America in relation to certain qualifying offences;
to date Mr Matson has not been convicted of any such offences; and
earlier on 15 January 2016 a Magistrate had determined that Mr Matson was eligible for surrender in relation to the alleged offences and that he be committed to prison under s 19 (9)(a) of the Extradition Act to await surrender or release.
102 It follows that although Mr Matson is currently detained at Arthur Gorrie Correctional Centre awaiting extradition, it is not because of criminal convictions. However, there is nothing in the decision of the Tribunal which supports a finding that this error of fact on the part of the Tribunal influenced the Tribunal, or that a fair-minded lay observer would apprehend bias on the part of the Tribunal for that reason.
Ground 7: Unreasonableness (point G of the grounds of the application)
103 Mr Matson claimed that the Tribunal’s decisions were affected by and reflected jurisdictional error, namely unreasonableness, or serious irrationality or illogicality on the basis that:
a) there was failure to properly ensure that the relevant evidence and documents (in an unredacted format) were before the Tribunal on 27 August 2020, which resulted in a failure to give proper, genuine and realistic consideration to the evidence in making the Deputy President 's Decisions including:
• The unredacted contents of the 11 confidential documents subject of the Confidentiality Application, in particular the parts claimed exempt under s 33 of the FOI Act; and
• The unredacted contents of the s 37 tribunal documents subject of the Implied Undertaking Application;
b) The Deputy Presidents Decisions were Wednesbury unreasonable in that no reasonable decision-maker acting with due appreciation of his or her duties would so decide as the Deputy President, and that he failed to observe the requirement that his satisfaction or opinion about the existence of a fact, be reasonably found, namely:
• It would be in the interests of justice not to adjourn the hearing;
• That providing me an opportunity to properly consider the First Respondent's written submissions and material file would not improve or change my argument;
• That allowing me to file written submissions in support of my applications and in response to the First Respondent s application would not improve or change my argument ; and
• Refusing the adjournment because I had indicated that if the Deputy President acceded to my request for an adjournment, I would use that as a foundation for an application to adjourn the proceedings before Rangiah J the following day, on the basis that the Deputy President was cautious about making an order that might prove an inconvenience to his Honour in that context.
104 As French CJ observed in Li:
30. The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence.”
105 As I have already noted:
The application by the first respondent for a confidentiality order was supported by submissions and evidence. The Tribunal was persuaded that a confidentiality order was appropriate. It was open to the Tribunal to make that finding.
The Tribunal explained its reasons for refusing to adjourn the hearing before it, in the context of background events and the imminent Federal Court hearing. It was open to the Tribunal to refuse to adjourn the hearing.
106 Mr Matson’s disagreement with the decisions of the Tribunal does not mean that the decisions were unreasonable in the Wednesbury sense.
Conclusion
107 Even were I not satisfied that the substantive application should be dismissed because the only issues it raises are moot, I consider it should be dismissed because none of the grounds on which Mr Matson relies have merit.
Interlocutory relief sought in the substantive application
108 As I have already observed, in the substantive application Mr Matson sought relief in the following terms:
Stay of the proceedings and orders of the Tribunal pending hearing and determination of this application by the Court;
Production by the learned Deputy President of the Tribunal of unredacted versions of certain documents, and a copy of the Tribunal transcript for the hearing that occurred on 27 August 2020 before the Deputy President in AAT matter 2020/2703;
Production by the first respondent of unredacted versions of certain documents;
Production by the OAIC of unredacted versions of certain documents.
109 In my view Mr Matson’s claims in respect of these forms of relief have no merit.
110 First, I have already found that the substantive application has no merit. In such circumstances, it would be pointless for the Court to grant the interlocutory relief Mr Matson sought in that application.
111 Second, it would be pointless for me to order a stay of the proceedings and orders of the Tribunal. As I have already observed, the findings of the Tribunal in relation to the production of documents for the purposes of the hearing before Rangiah J in QUD107/2019 have been overtaken by other events; namely, the fact that that hearing has occurred, the matter has been determined, and the decision of Rangiah J is now the subject of appeal to the Full Court by Mr Matson.
112 Third, I am not prepared to make what is effectively an order for discovery of documents against a Deputy President of the Tribunal, being documentation of a party to proceedings before the Tribunal.
113 Fourth, I am not prepared to make an order for production by a Deputy President of the Tribunal of the transcript of a hearing before the Tribunal. Insofar as I am aware, there was nothing to prevent Mr Matson (or his lawyer) seeking a copy of the transcript during the past year since the Tribunal hearing of 27 August 2020.
114 Fifth, an order requiring either the first respondent or the OAIC to produce unredacted versions of certain documents would be pointless in circumstances where issues relevant to the production of these documents have already been considered by Rangiah J in QUD107/2019.
115 The interlocutory relief sought by Mr Matson in the substantive application is refused.
10 June 2021 interlocutory application
116 Extensive relief was sought by Mr Matson in this interlocutory application.
Vacation of orders of 13 May 2021
117 Mr Matson sought vacation of orders made by me on 13 May 2021 until the 10 June 2021 interlocutory application, and any appeals, be heard and determined.
118 The orders of 13 May 2021 were as follows:
1. By 4.00 pm on 21 May 2021, the first respondent file and serve a bundle of relevant documents before the Tribunal (excluding the confidential documents which are the subject of the decision of the Tribunal dated 23 June 2020).
2. By 4.00 pm on 17 June 2021, the applicant file and serve an outline of submissions and any evidence on which he intends to rely, not to exceed 15 pages in total.
3. By 4.00 pm on 8 July 2021 , the first respondent file and serve and outline of submissions and any evidence on which he intends, not to exceed 15 pages in total.
4. By 4.00 pm on 5 August 2021, the applicant file and serve any submissions in reply, not to exceed 10 pages.
5. The matter be listed for hearing for half a day on 19 August 2021 at 10.15 am.
6. Costs be reserved.
119 On 10 August 2021 paragraph 4 of the Orders of 13 May 2021 were varied as follows:
1. Order 4 of the Orders dated 13 May 2021 be amended to read “By 4.00 pm on 13 August 2021, the applicant file and serve any submissions in reply, not to exceed 10 pages”.
120 An examination of the electronic Court File indicates that the Orders of 13 May 2021, as amended by the order of 10 August 2021, were complied with by the parties – namely the Court Book and all relevant submissions filed.
121 Vacating the orders of 13 May 2021 would be of no utility in such circumstances.
The proceeding in QUD 360/2020 be stayed until various events occur
Until various litigation funding applications of Mr Matson be “determined and approved”
122 The Court has a wide jurisdiction to stay proceedings in the interests of justice: s 23 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act); Impiombato v BHP Group Limited [2020] FCA 350 at [122]; Obeid v Commissioner of Taxation [2017] FCA 1135 at [2]; Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 at [53]. Further as Jackson J recently observed in Frigger v Trenfield (No 9) [2021] FCA 652:
7. … As always in matters involving civil practice and procedure the court must exercise the discretion in the way that best promotes the overarching purpose of the civil practice and procedure rules to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976 (Cth).
123 It is by no means likely that any litigation funding applications of Mr Matson currently on foot, or made by him in the future, will be “approved”. I also note that the substantive application in QUD360/2020 was filed by Mr Matson in November 2020 – namely 9 months ago. In my view, to stay the proceedings in QUD360/2020 in the hope that Mr Matson may belatedly receive litigation funding would be contrary to the principles set out in s 37M of the Federal Court Act.
Until the Court issued a referral certificate for pro bono assistance for Mr Matson
124 Relevantly the Federal Court Rules 2011 (Cth) provide as follows:
4.12 Referral for legal assistance
(1) The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with Form 9.
(2) When making a referral under subrule (1), the Court may take the following matters into account:
(a) the means of the party;
(b) the capacity of the party to otherwise obtain legal assistance;
(c) the nature and complexity of the proceeding;
(d) any other matters the Court considers appropriate.
(3) The referral certificate may state the kind of legal assistance for which the party has been referred.
(4) A Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer.
4.13 A party has no right to apply for a referral
A party is not entitled to apply to the Court for a referral under rule 4.12.
125 As Colvin J recently observed in AMV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 99, a party may raise the possibility of a referral and thereby invite the Court to consider the exercise of the discretion under r 4.12, but it is a matter for the Court as to whether there is a sufficient basis for it to consider whether to exercise the discretion and, if so, whether it should issue a referral certificate.
126 In circumstances where:
for reasons I have already explained, I am satisfied that the issues agitated by Mr Matson in the substantive application are of no utility;
Mr Matson was legally represented in these proceedings until recently, but his lawyer ceased to act on 10 August 2021; and
Mr Matson appeared capable of producing submissions on his own account,
I consider that staying the proceedings pending the issue of a pro bono referral certificate would be inappropriate.
Until hearing and determination of Mr Matson’s application for review of decisions of the Queensland Registry refusing the acceptance for filing of an application for leave to appeal from my orders of 13 May 2021
127 Mr Matson has complied with the case management orders of 13 May 2021 (to the point of requesting an extension of time, which I granted, for the filing of reply submissions). The substantive application in QUD360/2021 has been heard.
128 The utility of a stay in these terms is not only unclear, I consider that a stay for this purpose would be pointless.
Until the Australian Human Rights Commission (AHRC) makes a “finding” in relation to a complaint of Mr Matson dated 10 August 2020
129 As I have observed elsewhere in respect of other proceedings brought by Mr Matson, Mr Matson appears to believe, incorrectly, that the AHRC makes binding “findings”. The outcome of any inquiry by the AHRC has no judicial effect: see Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.
130 Further, it is entirely unclear to me how any complaint of Mr Matson in the AHRC is of any relevance to his applications in the Tribunal.
Until such time as Mr Matson’s “Formal Complaint to the Chief Justice” dated 3 June 2021 was processed and finalised
131 The terms of this complaint are not before the Court. In my view it is irrelevant to the Tribunal proceedings of which Mr Matson complains.
QUD360/2020 be consolidated with proceedings QUD356/2020 and QUD83/2021
132 There would be no utility in consolidating the present proceedings with QUD356/2020 and QUD83/2021, or indeed prolonging these proceedings any further. While I note that QUD356/2020 is the appeal from the decision of Rangiah J in QUD107/2019, as I have already observed, the decision of his Honour plainly overtook events in the Tribunal referable to the same documentation.
QUD360/2020 be referred to mediation
133 I note that the issue of referral of these proceedings to mediation was canvassed at the case management hearing of 13 May 2021. At that time the first respondent stated that it saw no point to mediation in respect of these proceedings.
134 Section 53A of the Federal Court Act gives a discretion to the Court to refer proceedings, or any part of them or any matter arising out of them, to a mediator for mediation. An order in these terms can be made with or without the consent of the parties: s 53A (1A) Federal Court Act.
135 For reasons I have already explained, I am satisfied that the Tribunal proceedings have been overtaken by events. Referring the matter to mediation would be futile (cf Menzies v Fair Work Commission [2020] FCA 36 at [87]), prolong the proceedings for no good reason, and cause the parties to incur unnecessary costs.
The first respondent file and serve the “annotated schedule of documents” in relation to Revised FOI Decision FOI18/082 dated 4 July 2019
136 For reasons I have already explained, I am satisfied that the Tribunal proceedings have been overtaken by events. Requiring this material to be filed and served would be pointless in circumstances where Mr Matson’s purpose in seeking this documentation related to the proceedings before Rangiah J, which have been heard and determined.
The transcript of the Tribunal hearing in AAT matter 2020/2703 heard on 27 August 2020 be provided to Mr Matson
137 As I have already observed, insofar as I am aware there was nothing to prevent Mr Matson (or his lawyer) seeking a copy of the relevant transcript during the past year since the Tribunal hearing of 27 August 2020. In my view, it would be inappropriate to order the transcript to be provided to Mr Matson at this late date, for the purposes of the present proceedings.
The Auscript transcript for the case management hearing dated 13 May 2021 for proceeding QUD360/2020 be provided to Mr Matson
138 In circumstances where Mr Matson (or his lawyer) had several months since 13 May 2021 to obtain a copy of the transcript I do not consider it appropriate to stay the proceedings.
139 In any event, I understand that a copy of the transcript of the case management hearing of 13 May 2021 (including by reference to the proceedings in QUD360/2020) is annexed to the affidavit of Ms Madeleine Cosette May King. I understand that this affidavit was filed on 22 June 2021 in other proceedings to which Mr Matson is a party, namely QUD356/2020. Accordingly, I consider it likely that Mr Matson has had access to the transcript since that date. To cause the Federal Court to incur further expense to provide Mr Matson with a document which he already has, or to delay these proceedings further for that purpose, would be contrary to the principles recognised by s 37M of the Federal Court Act.
Mr Matson be granted bail
140 Mr McKechnie for the first respondent submitted that the Court has no jurisdiction or power to grant Mr Matson bail in these proceedings: O’Donoghue v Minister for Immigration and Citizenship [2010] FCA 1486. Specifically, at [10]-[11] of that decision McKerracher J observed that the court might have power under s 23 of the Federal Court Act to make orders for bail as an interlocutory decision, but that power is only enlivened in circumstances where the substantive decisions themselves are ones that go to the validity of the person’s detention.
141 I respectfully adopt the reasoning of McKerracher J in O’Donoghue.
142 It is plain that the decision of the Tribunal in the present case did not go to the validity of Mr Matson’s detention. I am satisfied that the power of the Court to grant him bail is not enlivened by the present proceedings.
15 June 2021 interlocutory application
143 In summary, in this interlocutory application Mr Matson sought the following relief:
an interlocutory injunction to restrain the Federal Court of Australia from giving effect to my orders of 13 May 2021 in QUD360/2020 pending the hearing and determination of this interlocutory application and any appeals; and
that the proceeding be listed for further case management with proceedings QUD356/2020 and QUD83/2021.
144 This interlocutory application has no merit. In particular:
Even on the basis that Mr Matson actually seeks a stay, rather than an interlocutory injunction restraining the Federal Court of Australia, a stay of my orders of 13 May 2021 would be pointless in circumstances where all parties, including Mr Matson, have actually complied with them, and the matter heard.
There would be no utility in listing the present proceedings for case management with QUD356/2020 and QUD83/2021. While I note that QUD356/2020 is the appeal from the decision of Rangiah J in QUD107/2019, as I have already observed, the decision of his Honour plainly overtook events in the Tribunal referable to the same documentation.
145 This interlocutory application is refused.
Orders sought at the hearing on 19 August 2021
146 As I noted earlier in this judgment, at the hearing of 19 August 2021 in this matter, Mr Matson sought:
an adjournment of that hearing;
the production by the Court of an “AAT Bundle” of material forwarded by the Tribunal to the Court on or about 12 March 202;
leave to issue subpoenas to the Tribunal to produce the transcript of proceedings before the Tribunal; and
the opportunity to make further submissions concerning the “AAT Bundle” and the transcript of proceedings before the Tribunal.
147 I refused to make orders in these terms and informed the parties that I would subsequently publish my reasons. My reasons are as follows.
148 First, in circumstances where both Mr Matson and the first respondent had appeared to satisfactorily comply with my case management orders of 13 May 2021, in particular preparation and filing of detailed written submissions, and filing of a comprehensive Court Book by the first respondent, I was satisfied that both parties were prepared for the hearing and that neither would be prejudiced by the hearing proceeding.
149 Second, Mr Matson made much of an “AAT Bundle” of material forwarded by the Tribunal to the Court on or about 12 March 2021.
150 Despite filing his originating application on 10 November 2020, I note that Mr Matson has not at any time filed a supporting affidavit containing relevant details of the decision of the Tribunal, such that either the first respondent or the Court could be in a position to comprehend either the decision of the Tribunal or, in turn, the basis for Mr Matson’s complaints.
151 On 25 May 2021 the first respondent filed a Court Book, which included the following material:
INDEX TO THE COURT BOOK
In the Federal Court of Australia
No. Document Description Date Page
1. Originating Application 10-11-2020 1–17
Administrative Appeals Tribunal Proceeding 2020/2703
No. Document Description Date Page
2. Letter from AGS to the Administrative Appeals 23-06-2020 18–19
Tribunal (the Tribunal) regarding confidentiality
orders
3. Letter from Applicant to the Tribunal regarding 12-07-2020 20-22
application for release from implied undertaking
4. Email from AGS to the Applicant regarding terms 10-08-2020 23
of agreement as to decision, attaching:
a) Letter from AGS to the Applicant regarding 10-08-2020 24
terms of agreement
b) Terms of agreement as to decision made Undated 25-26
under s 42C of the Administrative Appeals
Tribunal Act 1975 (Cth)(AAT Act)
c) Email from AGS to the Tribunal regarding 10-08-2020 27
terms of agreement
5. Letter from the Applicant response to terms of 24-08-2020 28–29
agreement as to decision
6. Email from the Tribunal to AGS, attaching: 25-08-2020 30
a) Listing Notice 25-08-2020 31
7. Email from AGS to the Tribunal requesting 25-08-2020 32–33
adjournment of interlocutory hearing
8. Email from the Tribunal to AGS refusing 25-08-2020 34–35
adjournment of interlocutory hearing
9. Email from AGS to the Tribunal regarding 25-08-2020 36–37
availability of counsel
10. Email from the Tribunal to AGS granting request to 25-08-2020 38–39
relist interlocutory hearing
a) Listing Notice 25-08-2020 40
11. Email from AGS to the Tribunal, attaching (other 26-08-2020 41
attachments not reproduced):
a) Letter from AGS to AAT regarding 26-08-2020 42
interlocutory submissions
b) Respondent's submissions 26-08-2020 43–53
c) Witness Statement of Antony Catt, annexing: 26-08-2020 54–56
i. AC-1: Letter from AGS to the Applicant 10-08-2020 NR (at 4a)
regarding terms of agreement
ii. Terms of agreement as to decision Undated NR (at 4b)
made under s 42C of the AAT Act
iii. AC-2: Letter from the Applicant 24-08-2020 NR (at 5)
response to terms of agreement as to
decision
iv. AC-3: Annotated schedules of Undated 57–64
documents
v. AC-4: Email from the Respondent to 25-03-2020 65–66
the Commissioner regarding annotated
schedules for FOI 18/023 and FOI
18/082
d) Witness Statement of Lisa Hemingway, 26-08-2020 67–70
annexing:
i. LH-1: Applicant’s Amended 05-03-2020 71–76
Interlocutory Application
ii. LH-2: Applicant’s Interlocutory 29-06-2020 77–83
Application
iii. LH-3: Applicant’s Interlocutory 10-07-2020 84–88
Application
iv. LH-4: Applicant’s Interlocutory 02-08-2020 89–93
Application
v. LH-5: Applicant’s Interlocutory 02-08-2020 94–97
Application
vi. LH-6: Applicant’s Interlocutory 19-08-2020 98–101
Application
vii. LH-7: Originating Application in 04-08-2020 102–120
QUD254/2020
12. Reasons for Interlocutory Decision 07-04-2021 121–135
152 Importantly, the final document in the Court Book was the written reasons for decision of the Tribunal, published by the Tribunal on 7 April 2021.
153 To the extent that any material provided by the Tribunal to the Court to assist the Court contained Tribunal documents or details of the decision of the Tribunal member, it is likely that that material would be included in the Court Book filed by the first respondent in the present proceedings.
154 In my view it would be of no utility for the Court to produce to the parties material forwarded by the Tribunal to the Court on or about 12 March 2021, when:
all relevant material before the Tribunal appears to have been included in the filed Court Book; and
Mr Matson has not identified any relevant material which has been omitted from the filed Court Book.
155 Third, for reasons I have already given referable to the passage of time since the Tribunal hearing, and the absence of explanation by Mr Matson as to why either he or his lawyer have not sought the transcript of the Tribunal proceedings during the past year, I am not prepared to issue subpoenas to the Tribunal to produce the relevant transcript.
156 Finally, in these circumstances, and in the circumstances where I consider that the Tribunal proceedings have been overtaken by events referable to the hearing and decision of Rangiah J in QUD107/2019, I am not prepared to grant Mr Matson the opportunity to make further submissions.
Additional interlocutory application
157 After judgment was reserved in this case, on 20 August 2021 Mr Matson emailed a letter attaching another interlocutory application to the Queensland Registry. Mr Matson sought leave to file that interlocutory application, in which he in turn sought leave to re-open the substantive matter and file both additional evidence and further submissions.
158 It is well-settled that, once judgment has been reserved, it is only in exceptional circumstances that the Court will subsequently give leave to a party to re-open the case: see for example Heydon J in Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 at 330; [2003] HCA 28.
159 In my view there are no exceptional circumstances warranting the re-opening of the proceedings. The matter has been on foot since Mr Matson filed the substantive application on 10 November 2020, with case management orders made on 13 May 2020. Relevant material before the Tribunal was contained in the Court Book filed by the first respondent on 20 May 2021. Mr Matson has had ample time to review relevant material and obtain the transcript of proceedings before the Tribunal. He has had the benefit of legal representation during the proceedings, although his lawyer ceased to act prior to the hearing before me.
160 Again, and notwithstanding that, at the hearing of the present proceeding on 19 August 2021, the issue of Tribunal material provided to the Court in March 2021 was aired, Mr Matson seeks to be provided with such material. I am not persuaded that there is reason to re-open the proceedings following reservation of judgment, particularly where:
in light of the detailed Court Book filed by the first respondent containing extensive Tribunal material and correspondence, there is no apparent need for the Court (or anyone) to have further recourse to what Mr Matson describes as the “document bundle sent by the AAT to the Court” in order to resolve the present proceedings; and
as I have already observed, Mr Matson does not suggest that relevant material before the Tribunal is missing from the Court Book as filed, and which he has had for several months.
161 I refuse leave to Mr Matson to file and serve the interlocutory application sent to the Queensland Registry on 20 August 2021. I also refuse leave to Mr Matson to file further evidence and submissions in this proceeding following reservation of judgment.
Conclusion
162 None of Mr Matson’s applications in this matter have merit.
163 Both parties sought costs in the event that they were successful. In the circumstances, where the first respondent has been wholly successful (not only in the substantive application but in respect of all interlocutory relief sought) I consider it appropriate for costs to follow the event, and Mr Matson to be liable for the costs of the first respondent of and incidental to this proceeding.
I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. |
