Federal Court of Australia

Saywell v Comcare [2026] FCA 137

ORDERS

THE COURT ORDERS THAT:

December 2025 Interlocutory Application

1    The interlocutory application filed by the Applicant dated 1 December 2025, in respect of an application to adduce further evidence, and an application for the Court to rule on the allegations of contempt of Court contained in the Statement of Charge dated 1 December 2025 (Statement of Charge), is dismissed.

2    The Applicant’s informal application for leave to amend the Statement of Charge (Informal Application) is dismissed.

3    The Applicant pay the Respondent’s costs of the interlocutory application dated 1 December 2025 and the Informal Application.

February 2026 Interlocutory Application

4    The following subpoenas be set aside pursuant to r 24.15(a) of the Federal Court Rules 2011 (Cth):

(a)    the subpoena dated 23 January 2026 and addressed to “The Proper Officer, Comcare, Level 4, 121 Marcus Clarke St, Canberra ACT 2600”; and

(b)    the subpoena dated 23 January 2026 and addressed to “The Proper Officer, HB Legal (Canberra) Level 8, 121 Marcus Clarke St, Canberra ACT 2600”.

5    The Applicant pay the Respondent’s costs of the interlocutory application dated 5 February 2026.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

ANDERSON J:

Background

1    On 12 April 2024, the applicant made a request to the respondent for access to documents under the Freedom of Information Act 1982 (Cth). Access was refused under s 42 of the FOI Act on the basis that the documents are protected by legal professional privilege (FOI Decision). The request for access dated 12 April 2024 sought any communication between the respondent and Ms Kate Watson, a lawyer from HBA Legal, relating to an email from the applicant dated 22 February 2024 in the Administrative Review Tribunal, case number 2023\7232. On 16 April 2025, Deputy President Britten-Jones of the ART delivered a decision which affirmed the decision of the respondent under review (ART Decision).

2    On 12 May 2025, the applicant applied to the ART Guidance and Appeals Panel for review of the ART Decision. On 15 May 2025, the applicant was advised by the ART Guidance and Appeals Panel that the application for review of the ART Decision was ineligible to be heard by the Guidance and Appeals Panel.

3    On 11 June 2025, the applicant filed an application for an extension of time to bring an appeal to this Court. The applicant seeks to appeal the ART Decision, which affirmed the respondent's decision to decline access to the documents requested under the FOI Act on the basis that they are protected by legal professional privilege.

Application to Set Aside Subpoenas

4    On 19 July 2025, the applicant filed a request for leave to issue a subpoena. The request identified primary edited documents that the applicant alleged had not been disclosed in the proceeding before the ART.

5    On 25 July 2025, Registrar Edwards refused the applicant's request for leave to issue a subpoena, ahead of a case management hearing conducted by Registrar Edwards on 11 August 2025. The applicant made a further request for leave to issue subpoenas (in substantially the same form) to the respondent and HBA Legal. On 23 January 2026, subpoenas were issued at the applicant's request to the respondent and to HBA Legal (Subpoenas).

6    On 5 February 2026, the respondent filed an application seeking to set aside the Subpoenas. The respondent applies under r 24.15(1) of the Federal Court Rules 2011 (Cth) to have the Subpoenas set aside in whole because the respondent submits that they lack a legitimate forensic purpose and are an abuse of process.

7    Documents will serve a legitimate forensic purpose if they have an apparent relevance to the issues to be determined in the proceeding, such that they will have a bearing on the issues, that is not unreal, fanciful or speculative: Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120, at [12] (Jacobson, White and Gleeson JJ)

8    The Full Court in Seven Network Operations Limited v Fairfax Media Publications Proprietary Limited (2023) 418 ALR 284; [2023] FCAFC 185, (Wheelahan, Anderson and Jackman JJ), [37], held that the fundamental principle is that a party issuing a subpoena must demonstrate that the subpoena has a legitimate forensic purpose, and may be set aside if it is cast in terms which require production of documents which do not have apparent relevance to the issues in the case. At [38], the Full Court referred, with approval, to the reasoning of the NSW Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 as follows.

(a)    the language of 'tests' should be eschewed; whether a subpoena should be set aside depends on whether it involves an abuse of process, and it will be an abuse of process if it is not issued for a legitimate forensic purpose;

(b)    it is not necessary to show that the documents subpoenaed will or will be likely to assist the case of the party that has issued the subpoena;

(c)    it is sufficient to show that the subpoena can plausibly be seen to relate to an issue or issues in the proceedings or to cast light on such an issue, and the subpoena is not in other respects too vague or oppressive;

(d)    put differently, it is sufficient to show that there is a reasonable basis for supposing that the material called for would likely add, in the end, in some way or another, to the relevant evidence in the case; and

(e)    it is sufficient to show that the documents sought are apparently relevant in the sense that it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or that there is a reasonable basis beyond speculation that it is likely that the documents subpoenaed will so assist.

(Citations omitted)

9    The grounds of appeal in the notice dated 8 June 2025 do not specifically raise any issue of whether the documents before the ART were, in fact, subject to legal professional privilege. It is not apparent how the documents sought by the Subpoenas relate to any issue in the proceeding or could cast light on such issues. The documents cannot in any relevant sense be said to go to any issue raised in the proceeding.

10    In the absence of the documents the subject of the Subpoenas serving any legitimate forensic purpose, the Subpoenas amount to an exercise in speculation and amount to fishing. That is not a legitimate use of subpoenas. It is not a legitimate use of subpoenas to have the specified documents produced in a speculative attempt to identify whether the documents might ultimately be of some evidentiary value: Fried v National Australia Bank Limited [2000] 175 ALR 194; [2009] FCA 911 at [30] (Weinberg J).

11    For these reasons, the Subpoenas will be set aside.

12    The respondent has been successful in its interlocutory application filed on 4 December 2025. Costs should follow the event. The applicant will pay the respondent’s costs of the application filed 4 December 2025 on the standard basis.

Application to Adduce Further Evidence and Contempt Allegations

13    On 1 December 2025, the applicant filed an interlocutory application seeking orders that the Court:

(a)    grant the application to adduce certain new evidence on appeal in accordance with r 33.29 of the FC Rules, as detailed in the applicant's affidavits, filed on 4 December 2025 (December Affidavit), and 2 February 2026 (February Affidavit); and

(b)    rule on allegations of contempt of court by the respondent, as detailed in a statement of charge purportedly prepared in accordance with r 42.12 of the FC Rules (Statement of Charge).

14    The applicant has since sought to amend the Statement of Charge.  

15    There are two documents falling within the scope of the applicant's FOI request, both of which were email chains.  

16    Document 1, which was an eight-page email chain where the top email is between Ms Watson and Comcare, was claimed to be exempt in full, under s 42 of the FOI Act (documents subject to legal professional privilege): Tribunal Decision at [21].

17    Document 2 had the two most recent emails deleted as irrelevant to the request, and the balance of the email chain consisted of the same emails as in document 1. It was claimed to be exempt under s 42 of the FOI Act. Before the ART, the applicant claimed that privilege had been waived.  The ART found (a) there had been no waiver of privilege; and (b) there was no evidence, whatsoever, of any improper conduct by the respondent, and no evidence of any improper or illegal purpose:  ART Decision at [24]-[32].  The ART then considered whether the material that had been redacted from document 2 was within the scope of the applicant's FOI request and concluded that it was not.  The ART found that the correct decision was to refuse access to those parts of document 2: ART Decision at [34].  The ART further found that the applicant was not entitled to an edited copy of documents 1 and 2 under s 22(2) of the FOI Act because the criteria in s 22(1) – that must all be satisfied for s 22 to apply – were not all satisfied: ART Decision at [34]-[42].  The ART noted that the respondent had, at the applicant's insistence, provided the applicant with fully redacted copies of documents 1 and 2, despite not being legally obliged to do so, and that the applicant contended that the ART was required to consider whether the respondent complied with its obligations under s 22(2)(b) of the FOI Act.  The ART found that because s 22 has no application, it was not required to consider any further obligations under s 22(2)(b) because they did not arise: ART Decision at [43]-[46].  

18    The ART affirmed the decision under review and concluded that the respondent had not breached any of its obligations under s 22 of the FOI Act: ART Decision at [46]-[48].  

Contempt of Court: Legal Principles

19    An application alleging contempt of court is governed by Division 42.2 of the FC Rules.  Where a party alleges that a contempt has been committed by a person in connection with a proceeding in this Court, the application for punishment must be brought by interlocutory application in that proceeding: r 42.11(1) of the FC Rules.  Such an application must be accompanied by a statement of charge, specifying the alleged contempt, and with sufficient particularity, to enable the person charged to answer it, together with affidavits on which the applicant relies to prove the charge: r 42.1(2).  

20    It has long been accepted that a person should not be punished for a contempt unless the specific charge against them is distinctly stated, and an opportunity for answering it given to that person.  If the statement of charge itself does not sufficiently specify the contempt, the affidavit evidence served with the statement cannot be relied upon to remedy the deficiency: Coward v Stapleton (1953) 90 CLR 573, at 579-580 (Williams ACJ, Kitto and Taylor JJ)  cited in Australian Competition Consumer Commission v Info4PC.com Pty Ltd (2002) 121 FCR 24; [2002] FCA 949 at [9] (Nicholson J), see also Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at [31] (Lee and Finn JJ).  

21    For the reasons that follow, I accept the respondent's submission that the allegations in the Statement of Charge are so fundamentally defective that the interlocutory application does not comply with rr 42.11 and 42.12 of the FC Rules and should be refused.  

Charges One and Two

22    Charges one and two allege that the respondent's responses to certain notices to admit filed in this proceeding were false.  In substance, the applicant appears to contend that the facts he asserted in the notice to admit are true and that the respondent's denials are, therefore, improper.  The Statement of Charge does not articulate how such denials are said to amount to contempt, or are in the nature of contempt.  

23    Properly characterised, this is no more than an ordinary dispute of fact of the kind routinely encountered in litigation.  The mere denial of a fact alleged by an opposing party cannot, without more, constitute contempt of court: see Australian Building Construction Employees and Builders Labourers Federation v Commonwealth of Australia (1981) 37 ALR 470 at 475 (Dean J, Bowen CJ and Evatt J agreeing), see also U & I Global Trading (Australia) Pty Ltd v Tasman-Warajay Pty Ltd (1995) 60 FCR 26 at 33-35 (Cooper J).  

24    Even if the facts contended for by the applicant were ultimately proved, the appropriate consequence would be an order for the costs incurred in proving those facts under r 22.03 of the FC Rules, not a finding of contempt.   Even if it were possible for a denial of facts in the course of litigation to constitute contempt, any such application to deal with a party for contempt should only sensibly be brought after the relevant facts have been determined by the court.  As this Court has not determined the truth or falsity of the matters relied upon in charges one and two, there is currently no proper foundation for those charges arising in this proceeding.  

25    Further, the applicant's affidavits fail to provide evidence capable of proving the charges as required by r 42.12(b) of the FC Rules.  Contempt must be proven beyond reasonable doubt, and the onus of proof rests on the party bringing the charge: CFMEU v BHP Steel at [28] (Lee and Finn JJ), see also Info4PC.com at [5].  

26    The applicant has not adduced any evidence that would establish that his asserted facts are true and that the respondent's denials are false. The documents that the applicant would require to even attempt to establish that his asserted facts are “true” and the respondent's denials are “false” are subject to the FOI claims by the respondent.  For these reasons, the Statement of Charge in respect of charges one and two fails to comply with r 42.12 of the FC Rules and is incompetent.  

Charge Three

27    Charge three concerns allegedly false statements made in proceedings before the ART. The allegation of contempt is not connected with a proceeding in this Court and cannot be brought by interlocutory application; it must instead be commenced by originating application: r 42.11(1)-(2).

28    The expression “in connection with” is capable of describing a spectrum of relationships, and the required connection ultimately depends on the statutory context in which the words are used: Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2014) 227 FCR 1; [2014] FCA 1019, at [392]-[394] (Middleton J).  The Statement of Charge does not explain how conduct occurring in the ART, and prior to commencement of this proceeding, constitutes a contempt of this Court; it is not ‘connected with’ this proceeding.  The interlocutory application is therefore incompetent insofar as it raises charge three:

29    Further, charge three is insufficiently particularised.  The particulars disclose only that the applicant disputes the respondent's explanation that metadata of a file resulted from documents being printed and scanned on 20 May 2024, and that documents 1 and 2 were not altered after the respondent's FOI Decision on 13 May 2024.  

30    The Statement of Charge does not identify any basis upon which the respondent's contentions in the ART are demonstrably false.  Charge three concerns factual disputes extraneous to this proceeding.  In the absence of coherent particulars and evidence satisfying the falsity and any articulation of how the conduct is said to amount to a contempt of court, charge three fails to comply with r 42.12 of the FC Rules and must be rejected.  

Charge Four

31    Charge four appears to allege that the respondent's legal representative misled this Court at the first case management hearing in this proceeding.  The Statement of Charge fails to identify with specificity what precisely was said to the Court.  The applicant's affidavits also fail to provide any evidence of the statement, such as a transcript of the hearing.  Charge four fails to specify the alleged contempt with sufficient particularity, and to provide the required evidentiary foundation, contrary to what is provided in r 42.12.  For these reasons, charge four must be rejected.  

Proposed Amendments to the Statement of Charge 

32    In Castledine v Boronga Pty Ltd [2000] WASC 215 at [26], a passage approved in Ingham's Enterprises Proprietary Limited v Timania Pty Ltd (2005) 221 ALR at 823; [2005] FCAFC 155 (Tamblyn, North and Dowsett JJ), Anderson J held that:

Leave to amend the charge of contempt will not be granted if the original charge is seriously defective and the amendments which are sought are substantial.  Where the original pleading of contempt is completely devoid of particulars and is, on account, substantially defective, it is not a proper exercise of discretion to allow the person bringing the charge to cure the basic deficiency by amendment.  

33    The proposed amended statement of charge provided by the applicant, on 14 January 2026 (Proposed Amended Statement of Charge), is substantially different from the original Statement of Charge.  For that reason, leave to amend should be refused.  In any event, the Proposed Amended Statement of Charge continues to advance defective charges, and in the circumstances, I will not grant leave for the new charges to be raised.  

34    Proposed new charge one, which largely combines the current charges one and two, continues to be founded on the assertion that the respondent, through its representatives, made false statements in the ART without particularising precisely why those statements are false, or how they are alleged to constitute contempt of court.  The same evidentiary deficiencies attending the current charges one and two also apply to the proposed new charge one. 

35    Proposed new charge two includes a new allegation that the respondent has not provided a copy of certain documents in this proceeding.  The applicant has not identified any order or statutory process that required the respondent to produce those documents in this proceeding.  To the extent that the new charge two complains of a failure to comply with s 23(b) of the Administrative Review Tribunal Act 2024 (Cth), it does not explain how this amounts to a contempt of court.  

36    Proposed new charge three re-particularises the existing charge four.  The amended charge fails to specify the alleged contempt with sufficient particularity and to provide the required evidentiary foundation, contrary to r 42.12 of the FC Rules.  Proposed new charge four is entirely unrelated to this proceeding and the proceeding before the ART concerning the respondent's FOI Decision.  It purports to raise matters occurring in an entirely separate ART proceeding.  It is not open to the applicant to raise those matters in an interlocutory application in this proceeding under r 42.11 of the FC Rules.  Further, no contempt of court is alleged.  

Application to Adduce Additional Evidence

37    The interlocutory application, dated 1 December 2025, seeks to adduce further evidence on appeal in accordance with r 33.29 of the FC Rules.  However, the applicant's February Affidavit, at paragraphs [5]-[8], indicates that he seeks to adduce the evidence in support of the present interlocutory application alleging contempt rather than in the substantive appeal.  The application is misconceived.  The applicant does not need to apply for leave under r 33.29 of the FC Rules to rely upon evidence in the interlocutory application.  In any event, the respondent does not object to the applicant's reliance on documents annexed to his affidavit for the purposes of the interlocutory application, which was heard today. 

Evidence on Appeal

38    The applicant has not yet been granted leave to appeal from the ART Decision; however, the respondent does not object to the Court hearing and determining this interlocutory application to adduce further evidence at this stage, as the application for extension of time and any substantive appeal are to be heard together.  The respondent opposes the admission of the additional evidence on appeal.  The evidence the applicant seeks to adduce is set out at paragraphs [6]-[9] of the applicant's December Affidavit and paragraph [9] of the applicant's February Affidavit. 

December Affidavit

Paragraph [6(a)]: Documents in Issue Before ART

39    The documents identified in paragraph [6(a)] of the applicant's December Affidavit comprises the documents in issue before the ART, annotated to indicate exemptions.  The document was confidentially before the ART: ART Decision at [7], [21]-[22].  I accept the respondent's submission that there are four reasons why the documents should not be adduced on appeal.  

40    First, the applicant does not have possession of the document.  He is, in truth, seeking an order that the respondent produce the documents.  The application under r 33.29 of the FC Rules does not empower the Court to require the production of documents.  

41    Second, the applicant appears to contend that the document is relevant because it goes to alleged non-compliance with s 23 of the ART Act.  None of the questions of law or grounds raised in the draft notice of appeal raise issues concerning non-compliance with s 23 of the ART Act.  The relevance of the requested documents to the issues arising in the appeal is entirely unclear.  Third, pursuant to s 64(1) of the FOI Act, s 23 of the ART Act does not apply to a document that is claimed to be an exempt document (as that term is defined in s 4 of the FOI Act). So, any ground based on s 23 would be entirely devoid of merit.  Fourth, even if s 23 of the ART Act were to be raised in an appeal, it is unclear why the Court, on appeal, would need to access the document in order to determine the ground.  

Paragraph [6(b)]: FOI 2024/1917 Decision and Correspondence.  

42    The relevant documents are at annexure SS1 of the applicant's December Affidavit and are the respondent's decision and correspondence relating to another FOI request.  The documents in annexure SS1 were provided by the applicant to the ART in 2025.  The applicant did not tender the documents in the hearing before the ART.  The documents can, therefore, have no relevance to any issues arising on the appeal.  The application to adduce them will be refused.  

Paragraph [6(c)]: FOI 2024/2833 Decision and Correspondence

43    The relevant documents are at annexure SS2 of the applicant's December Affidavit and are the respondent's decision and correspondence relating to another FOI request.  The documents in annexure SS2 were before the ART and were marked as Exhibit 5.  Those documents will, in the ordinary course, be listed in Part B of the appeal book in accordance with r 33.26(b) of the FC Rules.  There is no need to make orders about adducing evidence that will already be before the Court.

Paragraph [7(a)-(b)]: Solex 12009 and Solex 12251 Decisions and Correspondence. 

44    The relevant documents are at annexures SS3 and SS5 of the applicant's December Affidavit and are the respondent's decisions on other FOI requests.  These documents were not before the ART.  Their relevance to issues raised by the appeal is not apparent.  The application to adduce this additional evidence will be refused.

Paragraph [8(a)-(c)]C: Audio Recordings of Hearings. 

45    The applicant has not explained the relevance of the audio recordings of the hearings.  If the applicant wishes to place before the Court evidence of what occurred at the hearing, this should be done by way of tendering the transcript of the hearings before the ART, not by adducing audio recordings of the hearings.  This additional evidence will be refused.

Paragraph [9(a)]: Respondent's Statement of Facts, Issues and Contentions

46    The relevant document is at annexure SS4 of the applicant's December Affidavit.  The document will, in the ordinary course, be listed in Part B of the appeal book, in accordance with r 33.26(b) of the FC Rules.  There is no need to make orders about adducing evidence that will already be before the Court.  This additional evidence will be refused.

February Affidavit

Paragraph [9(a)]: Documents from AAT2023/7232.  

47    The relevant documents are at annexure SSA1 of the applicant's February Affidavit.  These documents were before the ART (in the supplementary T-documents lodged on 24 January 2025).  These documents will, in the ordinary course, be listed in Part B of the appeal book, in accordance with r 33.26(b) of the FC Rules.  There is no need to make orders about adducing evidence that will already be before the Court.  The application for this additional evidence will be refused.

Paragraph [9(b):] Documents Released Under Comcare FOI 2024/2833.  

48    The relevant document is at annexure SSA2 of the applicant's February Affidavit.  The documents in annexure SSA2 were before the ART and were part of Exhibit 5.  Those documents will, in the ordinary course, be listed in Part B of the appeal book, in accordance with r 33.26(b) of the FC Rules.  There is no need to make orders about adducing evidence that will already be before the Court.  The application for this additional evidence will be refused.

Paragraph [9C]:Applicant's SOFIC from ART 2024/4736. 

49    The relevant document is at annexure SSA3 of the applicant's February Affidavit.  The document will, in the ordinary course, be listed in Part B of the appeal book, in accordance with r 33.26(b) of the FC Rules.  There is no need to make orders about adducing evidence that will already be before the Court.  The application for this additional evidence will be refused.

50    The orders of the Court will be that:

(1)    The applicant's application to adduce additional evidence and for the Court to rule on the allegations of contempt will be refused. 

(2)    The applicant pay the respondent's costs of the application dated 4 December 2025 on a standard basis. 

Associate:

Dated:    24 February 2026