Federal Court of Australia

Webb v Australian Information Commissioner [2026] FCA 678

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review be dismissed.

2.    The applicant pay the costs of the respondent, in the sum of $26,121.000 plus GST.

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

REASONS FOR JUDGMENT

NEEDHAM J:

The application for judicial review

1    The applicant, Ms Gayle Webb, made an application under the Freedom of Information Act 1982 (Cth) (FOI Act) to Services Australia for “all documents and records that make reference to the applicant between 1 September 2017 and 5 April 2022 inclusive” in twenty-two separate categories. It was refused on the basis of a “practical reason refusal” (see ss 24, 24AA and 24AB of the FOI Act). Ms Webb now seeks judicial review of a decision under s 55K of the FOI Act made on 20 May 2025 (AIC Decision) by a delegate of the respondent, the Australian Information Commissioner (AIC), which affirmed the decision of Services Australia to refuse the applicant’s freedom of information request after a process of merits review. The delegate considered that the applicant’s request for documents was properly the subject of a practical reason refusal.

2    The respondent appeared, not to engage as a party protagonist, but to assist the Court, in accordance with the principles expressed by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36. Mr Davidson, of the Australian Government Solicitor (AGS), undertook this task in an appropriate way, not objecting to evidence or engaging with the merits of the case. His assistance was particularly appreciated where the applicant appeared in person. The respondent’s submission as to the appropriate forum was a proper one to have brought before the Court.

3    Ms Webb claims that the AIC erred in not investigating Services Australia, and the “fraudulent documents” that were held on its IT systems and infrastructure. Ms Webb filed an affidavit on 10 September 2025, in support of the amended Originating Application, to which she annexed various documents she claims contain the “falsified documents”. Further documents were annexed to her later affidavit, of 16 March 2026.

4    The Originating Application indicates that the application is made pursuant to ss 5 and 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), s 39B of the Judiciary Act 1903 (Cth), and in accordance with rr 31.01, 31.11 and 31.12 of the Federal Court Rules 2011 (Cth). The orders that Ms Webb seeks under the ADJR Act are:

(a)    an order under s 16(1)(a) of the ADJR Act quashing or setting aside the AIC Decision, and “referring the matter back for reconsideration according to law”; and

(b)    an order under s 16(1)(d) of the ADJR Act which is expressed in the same terms as it appears in the sub-section, that is, an order “directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties”.

Should this application have been brought in the Administrative Review Tribunal?

5    A preliminary question to be dealt with first is a submission by the respondent that this Court is the wrong forum for these proceedings, and Ms Webb should have commenced instead in the Administrative Review Tribunal (ART).

6    Ms Webb submitted that the Federal Court was the appropriate forum, as the ART did not, she said, have jurisdiction in relation to judicial review. She submitted it could not make the kinds of determinations she sought given that she wished to ensure the integrity of the public record, and that the respondent did not deal with future applications by the public in the same way. She referred to these as “public interest factors”.

7    The respondent contended that the starting place for the submission that the ART is the correct forum is s 10(2)(b)(ii) of the ADJR Act, which provides that the Court may refuse to grant an application under s 5 of that Act in circumstances where adequate provision for a review is available under another law. This principle also applies to applications under s 39B of the Judiciary Act (see Kant v Chief Executive Officer of the National Anti-Corruption Commission [2026] FCA 13 (Horan J) at [51]-[52] and the cases there cited).

8    Ms Webb submitted that the proceedings were properly brought in this Court because a number of factors took it out of the ordinary; these were that she was not seeking merits review, rather, she was alleging “legal error, jurisdictional error, denial of procedural fairness, failure to consider material issues, and failure to lawfully exercise the statutory function conferred by the [FOI Act]”. She also contended that the AIC had failed to investigate Services Australia on three prior occasions (two of which had been determined adversely to Ms Webb, and one which was overlooked for some time but has now commenced the review process). Ms Webb’s Originating Application referred to these three complaints but, as she confirmed at the final hearing as well as at a prior case management hearing, they are not the subject of her application for judicial review. They formed, she said, part of the background which meant that the Federal Court was the proper place for the application for review, because it shows that “to date, the [AIC] has not meaningfully engaged with [her] evidence and allegations concerning fabricated and fraudulent documents and records”.

9    Ms Webb’s resistance to the ART is founded in her concerns that the AIC has not dealt with her previous complaints properly, and as a result the merits review process of the ART is not the appropriate course.

10    Ms Webb’s argument that the ART lacked jurisdiction was based on a view that the AIC’s “errors would not be reviewed by the [ART]; only the facts of the case of why the practical refusal reason occurred”. She also contended that the ART did not have jurisdiction to review complaints made under s 70 of the FOI Act.

11    Parliament has, by the establishment of the ART, provided a place for review of administrative decisions such as decisions under the FOI Act. This includes access refusal decisions under s 55K: see Part VII of the FOI Act. Absent quite unusual circumstances such as those in Comcare v DSLB and Another [2025] FCAFC 13; (2025) 307 FCR 565, the appropriate venue is the ART. This applies even when the complaint against the original decision is one of a failure of procedural fairness. As Rares J said in Seymour v Migration Agents Registration Authority [2006] FCA 965; (2006) 215 FCR 168 at [123]:

Ordinarily, where the legislature has given a party aggrieved by an administrative decision a full statutory right of appeal on facts and law, that is indicative of a legislative intention that that right is the party’s only means of redress against the failure of the original decision-maker to follow, according to law, the rules of procedural fairness in coming to the decision.

12    Section 57A of the FOI Act deals with review of decisions of the AIC in the ART. That section reads (including notes):

57A Tribunal reviewable decisions—which decisions are reviewable?

 (1) An application may be made to the Tribunal for review of the following decisions:

(a)  a decision of the Information Commissioner under section 55K on an IC review;

(b) if the Information Commissioner makes a decision under paragraph 54W(b) (matters inappropriate for IC review)—the IC reviewable decision in relation to which the Information Commissioner makes the decision.

Note 1: An application for the review of a decision may be made by a person whose interests are affected by the decision (see section 17 of the Administrative Review Tribunal Act 2024).

Note 2: For the time period for making an application, see sections 18 to 20 of the Administrative Review Tribunal Act 2024.

Time for applying to Tribunal if Information Commissioner declines to review decision

 (2) Despite section 18 of the Administrative Review Tribunal Act 2024 an application for review of an IC reviewable decision mentioned in paragraph (1)(b) of this section must be made within the period:

(a) starting on the day on which the decision by the Information Commissioner under paragraph 54W(b) of this Act is made; and

(b) ending at the end of the period prescribed for the purposes of subsection 18(1) of the Administrative Review Tribunal Act 2024.

No referral to guidance and appeals panel

 (3) Part 5 (guidance and appeals panel) of the Administrative Review Tribunal Act 2024 does not apply in relation to:

(a) an application under subsection (1) for review of a decision; or 

(b) the decision of the Tribunal on the review.

13    The AIC Decision specified that it was a decision under s 55K. The time in which any application for review in the ART would need to be commenced is 28 days.

14    The question is whether the applicant should have commenced her proceedings for review in the ART, as a specialist tribunal which is equipped to provide a complete remedy for the applicant (see Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 427 (Walsh J)). I do not consider that the previous decisions of the AIC and the decision currently under review take the matter out of the usual course because the ART has the powers given to it under s 105 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), by which it may affirm, vary, set aside, or substitute its own decision in place of the decision under review. It is a tribunal informed by its objectives as set out in s 9 of the ART Act. Two features of those objectives are sub-ss (c) and (d) of s 9, which state, respectively, that the ART must provide an independent mechanism for review of decisions which is accessible and responsive to the diverse needs of parties to proceedings, and which improves the transparency and quality of government decision-making.

15    I do not regard Ms Webb’s expressed concern - that a merits review of the AIC Decision does not address the “bigger picture” or her “public interest factors” - as a reason why the ART was not the appropriate place in which to seek review of the AIC Decision. As Katzmann J said in CSL Australia Pty ltd v Minister for Infrastructure and Transport [2013] FCA 152; (2013) 133 ALD 507 (at [51]), “[a] provision for review may be adequate although it does not allow for every conceivable remedy” as long as that remedy is “suitable or sufficient”. A merits review is a suitable and sufficient remedy for Ms Webb’s concerns as to the refusal of her FOI Act request.

16    As noted by Horan J in Kant at [58], the discretion to refuse relief based on the existence of an adequate alternative in the ART may be made as a preliminary point. While there was no application for a strike-out on this point (given the respondent’s approach pursuant to Hardiman noted above), where it is clear that a more appropriate forum exists for the remedy sought by the applicant, no consideration of the substantive issues is required. See Davies J in Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 at 34:

[T]he general practice of the Court is not to consider, in the first instance, a dispute for the resolution of which a satisfactory administrative remedy has been provided. …

This Court is too busy and its processes are too costly for it generally to be appropriate for an applicant to come to the Court when there is an informal and expeditious administrative tribunal established to resolve the dispute.

17    This, like Kant, is a clear case in which I should exercise my discretion to dismiss the application on the basis that the applicant had a right to a review on facts and law in the ART, and she would be able to bring that case (subject of course to a successful application for an extension of time to seek that review).

Grounds for judicial review

18    Ms Webb has sought, as noted above, a broad range of judicial review grounds including unparticularised fraud and concerns that Services Australia has specified what she said is an unfeasibly long time to produce the documents sought on her freedom of information request in order to ground the “practical refusal” reason for non-production. While I do not wish to pre-empt any determination by the ART should Ms Webb bring an application for review there, I should say that there was no evidence of fraud or impropriety in reaching the specified number of hours in the evidence before me. Ms Webb agreed that she was in effect drawing an inference from the material.

Costs

19    The respondent seeks its costs of the proceedings in a fixed amount of $26,121.00 (excluding GST). This application is brought consistently with the provisions of the Costs Practice Note (GPN-COSTS) and in particular Ms Meaghan Prefontaine, the deponent of the affidavit in support of the application for costs of 10 April 2026, has set out the factors required to be considered in the Practice Note.

20    Of particular relevance is the correspondence attached by Ms Prefontaine from Ms Emily Norris, formerly an AGS lawyer, to Ms Webb dated 18 July 2025 in which she set out the availability of merits review in the ART and made an offer not to pursue costs in these proceedings were Ms Webb to discontinue and seek a remedy there. Ms Webb declined both that offer by correspondence, and a further invitation by correspondence from Ms Norris on 8 September 2025. On 7 November 2025, Ms Norris wrote once more in similar terms, and there was no response. At a case management hearing on 13 February 2026, I suggested that the respondent inform Ms Webb of the anticipated costs so that she could make an informed decision as to the risks of a costs order.

21    Ms Webb contended that this was not an appropriate matter in which costs should be ordered, given the “exceptional” nature of the case, the importance to government decision-making of integrity of documents, and the “number of patterns” in respect of her three complaints made to the AIC. She further submitted that she was not able to pay costs in a lump sum and if any costs order were made, that they not be made payable at once.

22    I am satisfied that the costs sought are reasonable having regard to the amount that could be sought on taxation, and that making an order for a fixed sum saves the parties from the time and cost of any taxation. The costs appear to have been divided reasonably between lawyers of appropriate seniority, noting that Mr Davidson (as Deputy Chief Solicitor) appeared as advocate on a number of occasions. The costs sought are approximately 60% of the total costs, which is on the low end of the party-party taxation to which the respondent would be entitled were the costs to be taxed.

23    Given that Ms Webb was given a number of opportunities to discontinue without any costs penalty, and her attention had been fairly drawn to the ART as the proper place to bring an application for review, I consider that a costs order should be made. I will order that Ms Webb pay the costs of the respondent, in the sum of $26,121.00 plus GST.

24    The question of how those costs are to be paid was not elaborated upon apart from Ms Webb’s statement in submissions that she could not afford to pay in a lump sum. It is a question for the respondent as to how it would accept payment of those costs, with the applicant having the opportunity on any enforcement application to apply for a variation of the time in which costs are able to be paid.

Associate:

Dated:    1 June 2026