Federal Court of Australia

Li v Australian Information Commissioner [2026] FCA 1184

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is amended to Australian Information Commissioner.

2.    The applicant’s oral interlocutory application for an enlargement of time within which to lodge the application in respect of the decision of the second respondent is dismissed.

3.    The proceeding is dismissed.

4.    The applicant pay the respondents’ costs of the proceeding.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    This proceeding concerns the applicant’s ultimately successful endeavour to obtain from the second respondent (Comcare) under the Freedom of Information Act 1982 (Cth) (FOI Act) a copy of a workplace health and safety report prepared in response to a complaint that he made to his employer, the Australian Postal Corporation (Australia Post).

2    The objects of the FOI Act include to give the Australian community access to information held by the government of the Commonwealth by providing for a right of access to documents. The objects also provide, in s 3(4), that the Parliament intends that the functions and powers given by the Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

3    This proceeding is another instance of lengthy delay that has occurred in the Office of the Australian Information Commissioner in considering an application for review, or “IC review”, under Part VII of the FOI Act. In the case of the applicant, the delay between the making of the application for review and the finalisation of the review was a period of three years and nine months. The IC review concluded upon Comcare determining to grant access to the document. The reasons for the Commissioner’s delay in this instance are not before the Court.

Factual background

4    On 10 March 2021 the applicant wrote to Australia Post raising a number of issues concerning his treatment in his employment and which included some occupational health and safety issues. One of the occupational health and safety issues raised was a claim that there was a practice by customers of StarTrack, a parcel delivery business owned by Australia Post, of overloading pallets of goods for delivery which presented a risk of injury to the applicant and other employees.

5    The applicant’s complaint was referred to Comcare. Amongst other things, Comcare has functions as the regulator under the Work Health and Safety Act 2011 (Cth) to conduct proceedings under the Act, and for that purpose has all the powers and functions that an inspector has under the Act: ss 152 and 153. The functions of an inspector under the Act are provided for by s 160. The functions include the investigation of contraventions of the Act and to assist in the prosecution of offences and to monitor compliance.

6    Comcare received the applicant’s complaint on 15 March 2021 and on the next day an inspection commenced.

7    On 14 July 2021 an inspector completed a report in relation to the applicant’s complaints. The report purported to address a variety of issues. No finding or recommendation in terms was made in relation to any non-compliance by Australia Post with its obligations under the Work Health and Safety Act.

8    On 27 July 2021 the applicant made his request to Comcare under the FOI Act for access to the inspector report.

9    On 26 August 2021 Comcare decided to refuse access to the report, providing reasons in writing. Comcare determined that the public interest conditional exemption in s 47E of the FOI Act applied to the document on two grounds. First, Comcare assessed that disclosure of the document could have a substantial adverse effect on the management or assessment of personnel by Australia Post: s 47E(c). Comcare reasoned that, as the document contained information relating to investigations of alleged breaches of the Work Health and Safety Act, its release could reasonably be expected to discourage Australia Post employees and other personnel from raising concerns or participating with candour in internal or external investigations of complaints regarding workplace health and safety, or any other matters. Comcare stated that this reluctance could arise where personnel know that reports investigating their complaints might become publicly accessible through the FOI process. Comcare determined that a reluctance by Australia Post employees to provide statements or information in respect of allegations of inappropriate behaviour, misconduct, or breaches of the human resources policies, including safety policies and procedures at Australia Post would, in turn, have a substantial adverse effect on the management of its personnel.

10    Second, Comcare assessed that disclosure of the report could have a substantial adverse effect on the proper and efficient conduct of the operations of Australia Post: s 47E(d). Comcare determined that information received from Australia Post in the course of its investigation was likely to be confidential, that work health and safety investigations rely heavily on co-operation from other parties, and that Comcare was satisfied that disclosing information obtained in confidence would prejudice the ability of Comcare to conduct future investigations.

11    In relation to both grounds, Comcare further determined for the purposes of s 11A(5) of the FOI Act that disclosure would be contrary to the public interest.

12    On 6 September 2021, the applicant made a complaint to the first respondent, the Office of the Australian Information Commissioner in relation to Comcare’s refusal to give him access to the inspector report. It appears from the material that the Office treated this complaint as an application for IC review under Part VII of the FOI Act.

13    Some months later, on 20 June 2022 the Office wrote to Comcare in relation to the IC review, and on 25 July 2022 Comcare provided submissions to the Office. There is then a considerable gap in the chronology which is not explained by the evidence. Because there is an absence of evidence, I make no findings about the reasons for the inactivity by the Information Commissioner and her Office.

14    On 26 May 2025, Comcare determined to set aside its original decision refusing access and to make a fresh decision giving the applicant full access to the inspector report. Comcare’s reasons for its fresh decision were in writing. In essence, Comcare noted that the applicant had received a full and unredacted copy of the report during the course of court proceedings. It appeared to be common ground between the parties at the hearing that the applicant had obtained a copy of the Comcare report from Australia Post.

15    Section 55G of the FOI Act provides that an agency may vary or set aside and substitute an access refusal decision at any time during an IC review of the original decision if the variation or substitution would have the effect of (inter alia) giving access to a document in accordance with the request. Paragraph 55G(2)(b) then provides –

[t]he Information Commissioner must deal with the IC review application for review of the original decision as if it were an IC review application for the review of the varied or substituted decision, subject otherwise to this Part.

16    The effect of the substituted decision was that the applicant’s application for IC review was thereafter an application to review a decision giving him full access to the document in question.

17    Also on 26 May 2025, the Office wrote to the applicant to advise him of an intention to recommend to the delegate of the Commissioner that the IC review should be finalised under s 54W(a)(i), which provides –

54W    Decision to review-discretion not to review

The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if:

(a)    the Information Commissioner is satisfied of any of the following:

(i)    the IC review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;

…

18    The applicant was invited to provide reasons as to why this course should not be followed.

19    On 30 May 2025, the applicant provided reasons to the Office as to why he disagreed with the proposed finalisation.

20    On 5 June 2025, a delegate of the Commissioner decided not to continue to undertake the IC review. The delegate’s reasons were given in writing. Amongst other things, the delegate stated –

Comcare has now provided full access to documents responsive to the applicant’s FOI request. There are no outstanding issues within the scope of the IC review.

The applicant’s submissions address Comcare’s general conduct in processing the FOI request. The matters raised by the applicant are not within the scope of the IC review.

On this basis, I am satisfied that the matter is lacking in substance.

Procedural background

21    On 11 June 2025, that is, after the Commissioner had finalised the IC review by determining not to continue it, the applicant filed an originating application for judicial review in Form 66, which is the form applicable to applications made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in accordance with r 31.01 of the Federal Court Rules 2011 (Cth). At the time the originating application was filed, the applicant was unrepresented. The grounds of review did not clearly engage any of the statutory grounds of review under s 5 of the ADJR Act. At the first case management hearing on 5 September 2025, I ordered that the applicant be referred for pro bono legal assistance under r 4.12 of the Federal Court Rules. I also ordered that by 20 November 2025 the applicant file any proposed amended originating application seeking judicial review and adjourned the case management hearing to 4 December 2025.

22    A member of the Victorian Bar generously accepted the Court’s pro bono referral and assisted the applicant by preparing an amended originating application. On 10 November 2025, the amended originating application was filed. Although leave had not been given to file the amended originating application, I regularised the position by giving leave nunc pro tunc to amend the originating application by orders that I made on 4 December 2025.

23    By his amended originating application, the applicant applies to the Court under the ADJR Act to review three decisions which are identified as follows –

1.    Review the failure of the First Respondent to make a decision with respect to the Applicant’s application for IC Review lodged on or about 6 September 2021 (2021 IC Review Application) under s 55K of the Freedom of Information Act 1984 (Cth) (FOI Act) within a reasonable time;

2.    Further and alternatively, review the failure of the First Respondent not to exercise its discretion under s 54W(a)(i) of the FOI Act with respect to the 2021 IC Review Application within a reasonable time; and,

3.    Further and alternatively, review the decision of the Second Respondent dated 26 August 2021 (2021 Access Refusal Decision) to refuse to grant the Applicant access to the unredacted version of the Comcare Inspector Report dated 14 July 2021 (Unredacted Comcare Report) under s 23(1) of the FOI Act.

24    The details of the applicant’s claims set out in the amended originating application are as follows –

Details of claim

The Applicant is aggrieved by:

1.    The First Respondent’s failure to decide his 2021 IC Review Application under s 55K, or exercise its discretion under s 54W(a)(i) of the FOI Act, within a reasonable time. Section 7(1) of the Administrative Decisions Judicial Review Act 1997 (Cth) (ADJRA) provides for a person aggrieved by a failure to make a decision to apply for judicial review on the basis that there has been an unreasonable delay in making the decision. Section 5(1)(e) of the ADJRA also provides for a person aggrieved by a decision to apply to the court for a review of the decision on the basis that it was an improper exercise of a power conferred by an enactment under which it was purported to be made. There was a delay of over 3 years in the First Respondent deciding the 2021 IC Review Application. The First Respondent’s delay was unreasonable in and of itself, and further and alternatively, caused the First Respondent’s exercise of its discretion under s 54W(a)(i) of the FOI Act to miscarry.

2.    The Second Respondent’s 2021 Access Refusal Decision. Section 5(1)(e) of the ADJRA provides for a person aggrieved by a decision to apply to the court for a review of the decision on the basis that it was an improper exercise of a power conferred by an enactment under which it was purported to be made.

25    In relation to the decisions of the Commissioner that are the subject of the application for review, the applicant relies upon the following grounds, accompanied by detailed particulars which I shall not reproduce –

Grounds of application

First Respondent

1.    Pursuant to s 7(1) of the ADJRA, the First Respondent failed to make a decision with respect to the 2021 IC Review Application by:

(a)    failing to determine the 2021 IC Review Application under s 55K of the FOI Act within a reasonable time; and,

(b)    further and alternatively, failing to exercise its discretion under s 54W(a)(i) of the FOI Act within a reasonable time.

2.    Further and alternatively, pursuant to ss 5(1)(e) and 5(2)(g) of the ADJRA, the First Respondent’s exercise of its discretion under s 54W(a)(i) of the FOI Act was so unreasonable that no reasonable decision make could have so exercised the discretion.

26    In relation to the decision of Comcare, which is the subject of the applicant’s third claim, the applicant’s grounds are as follows –

Second Respondent

3.    Pursuant to s 5(1)(e) of the ADJRA, the 2021 Access Refusal Decision was an improper exercise of the power conferred by s 23(1) of the FOI Act because:

(a)    Pursuant to s 5(2)(b) of the ADJRA, the Second Respondent failed to have regard to a relevant consideration, being that the Applicant was the employee subject of the Unredacted Comcare Report; and

(b)    Further and alternatively, pursuant to s 5(2)(g) of the ADJRA, the Second Respondent’s decision was so unreasonable that no reasonable person could have made it.

27    The relief sought by the applicant is declaratory relief under s 16 of the ADJR Act, which is sought in the following terms –

Final orders sought

First Respondent

1.    Pursuant to s 16(3)(b) of the ADJRA:

a.    an order declaring that the delay of the First Respondent in deciding the Applicant’s application for IC review that was lodged on or about 6 September 2021 was unreasonable; or,

b.    further and in the alternative, an order declaring that the delay of the First Respondent in exercising its discretion under s 54W of the FOI Act was unreasonable.

2.    Pursuant to s 16(1)(c) of the ADJRA, an order declaring that;

a.    the First Respondent’s exercise of its discretion on 5 June 2025 to discontinue to 2021 IC Review Application was unreasonable because the First Respondent delayed considering the 2021 IC Review Application for over three years and until there was no outstanding issues within the scope of the IC Review; and,

b.    the First Respondent ought to have determined the 2021 IC Review Application under ss 55K or 54W(a) of the FOI Act in a timely manner and in accordance with the objectives in s 3 of the FOI Act.

3.    An order that the First Respondent pay the Applicant’s costs of and incidental to the proceeding.

Second Respondent

4.    Pursuant to s 16(1)(c) of the ADJRA, an order declaring that the Second Respondent’s decision dated 26 August 2021 was an improper exercise of the power conferred by s 23(1) of the Freedom of Information Act 1982 (Cth) for the purposes of ss 5(1)(e) and 5(2)(b); and, or 5(2)(g) of the ADJRA.

5.    An order that the Second Respondent pay the Applicant’s costs of and incidental to the proceeding.

28    On 26 November 2025, Comcare filed two documents. The first document was a notice of objection to competency in relation to ground 3 of the amended originating application which is the ground that concerns Comcare’s initial refusal decision. The essence of Comcare’s objection to competency is that the original decision that is the subject of ground 3 is no longer the operative decision, and that therefore the applicant is not a person aggrieved by the decision. Comcare also relied on a claim that the application under the ADJR Act was made outside the 28-day period prescribed by s 11(3) of the Act, and that no application to allow further time had been made to the Court pursuant to s 11(1). In response to this claim, counsel for the applicant made an oral application during the hearing for an enlargement of time, relying on the same material and the same submissions that were before the Court in relation to the other interlocutory matters. Comcare did not oppose the application being made orally, and I determined to treat the application as having been made and to dispense with the requirements that would otherwise arise under s 31.02 of the Federal Court Rules to make a written application supported by affidavit.

29    Also on 26 November 2025, Comcare filed an interlocutory application seeking summary judgment against the applicant in the exercise of the Court’s powers under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1) of the Federal Court Rules. The substance of that application is that the applicant’s claims against Comcare have no reasonable prospect of success.

30    On 3 December 2025, the Commissioner filed an interlocutory application also seeking summary judgment against the applicant. The grounds of that application are substantially the same as Comcare’s application, that is, that the Commissioner claims that the applicant has no reasonable prospect of success.

31    At the case management hearing on 4 December 2025, amongst other things, I fixed the notice of objection to competency and the two interlocutory applications seeking summary judgment for hearing. I also made a further referral for pro bono assistance for the applicant. There were some delays in procuring pro bono assistance for the applicant for the hearing, as a result of which the initial hearing date was vacated. After the applicant obtained pro bono assistance the matters were then refixed for hearing on 24 July 2026. The applicant had the benefit of representation by Ms Stephanie Clancy of the Victorian Bar, who argued his case clearly and skilfully. Ms Clancy is to be commended for the generous assistance that she gave to the applicant and to the Court.

The issues

32    As argued, the issues in the interlocutory applications were as follows –

(1)    Should the Court enlarge time for the applicant to bring an application against Comcare under the ADJR Act in relation to the initial decision refusing access to the inspector report?

(2)    Is the applicant a person “aggrieved” by the initial decision of Comcare to refuse access to the inspector report?

(3)    Does the applicant have any reasonable prospect of establishing the grounds of review on which he relies?

(4)    Does the applicant have any reasonable prospect of obtaining the declaratory relief which he claims?

Issue 1: Should the Court enlarge time?

Submissions

33    The applicant submitted that it would have been impractical for him to apply for ADJR Act review prior to completion of the Commissioner’s review process having regard to the Court’s discretion to refuse relief where provision is made for review by another authority: ADJR Act s 10(2)(b)(ii).

34    The second respondent accepted that it suffered no prejudice by reason of the delay but opposed the extension on the basis of its submissions as to the merits and utility of the application, which I will address in Issues 2 to 4 below.

The enlargement of time is refused

35    The Court’s power under s 11 of the ADJR Act to allow further time within which to make an application for an order for review was the subject of consideration by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344 (Hunter Valley). The decision of Wilcox J in Hunter Valley has been frequently applied to a variety of statutory powers to enlarge time and was cited with approval in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [13] (Kiefel CJ, Gageler, Keane and Gleeson JJ). In Hunter Valley at 348 to 349, Wilcox J identified a number of factors that may inform whether the Court should exercise its discretion to enlarge time. The factors identified constitute guidance and are not exhaustive. The particular considerations identified by Wilcox J which are of relevance to the present case are—

(a)    the Court will not grant an extension unless positively satisfied that it is proper to do so;

(b)    the prescribed period, which in this case is 28 days, is not to be ignored;

(c)    prima facie, the very existence of a prescribed period presumptively implies that an application brought outside of that period should not be entertained and, therefore, it will be at least necessary for an applicant to show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;

(d)    any action taken by an applicant, other than making the relevant application in relation to which an extension of time is sought, may be relevant to the acceptability of the explanation for the delay;

(e)    any prejudice to a respondent occasioned by the delay is a material factor militating against the grant of an extension, noting that the mere absence of prejudice to the respondent is not enough to justify the grant of an extension because public considerations may intrude; and

(f)    the merits of the substantial application, being the application in respect of which the applicant seeks an extension of time, are properly to be taken into account.

36    The applicant has an acceptable explanation for not lodging the application against Comcare within the 28-day prescribed period. That explanation is that it was reasonable for him, at that time, to pursue merits review through the IC review process under the FOI Act. Any claim against Comcare that was commenced within the 28-day period would likely have been met by an argument that the Court should exercise its discretionary power under s 10(2)(b)(ii) of the ADJR to refuse to grant the application on the ground that adequate provision is made by the FOI Act for review of Comcare’s decision. The availability of merits review might still have force should this matter proceed to a final hearing, but that was not a basis on which Comcare sought summary determination.

37    The merits of the application are the weightiest consideration. For the reasons explained in relation to Issue 2, which relates to whether the applicant is a person aggrieved by a decision, the applicant’s application in relation to Comcare’s decision is not competent and therefore I refuse the application to enlarge the period within which the application may be lodged on the ground that any enlargement of time would be futile.

Issue 2: Is the applicant a person “aggrieved” by Comcare’s initial decision?

Submissions

38    In McKinnon v Commonwealth Bank of Australia [2006] FCAFC 10, the Full Court (Black CJ, Stone and Young JJ) stated at [6] that to say a matter is not competent is to employ a term of art, and that “what it means is that the matter simply cannot proceed because the law does not allow it to”. Comcare submitted that the proceeding was not competent because the applicant was not a person “aggrieved” by the initial refusal decision and therefore he lacked standing at the time the proceeding was lodged: ADJR Act s 5(1). It was agreed by the parties that the applicant carries the burden of establishing the competency of his application: r 31.05(2).

39    The second respondent cited the reasons of Hayne and Bell JJ in Argos Pty Ltd v Corbell [2014] HCA 50; 254 CLR 394 (Argos) as authority for the correct approach to assessing whether a person is “aggrieved” by an administrative decision (at [61]) –

The focus of the inquiry required by the words is upon the connection between the decision and interests of the person who claims to be aggrieved. The interests that may be adversely affected by a decision may take any of a variety of forms. They include, but are not confined to, legal rights, privileges, permissions or interests. And the central notion conveyed by the words is that the person claiming to be aggrieved can show that the decision will have an effect on his or her interests which is different from its effect on the public at large. Here, the effect was said to be economic.

(Citation omitted.)

40    Comcare submitted that the applicant’s interests are not affected in circumstances where the initial refusal decision had been set aside and subsumed by a decision to grant access to the inspector report.

41    In response, the applicant submitted that the term “a person aggrieved” is of very wide import and ought to be construed consistently with the purpose of the ADJR Act in facilitating judicial review: Argos at [48] (French CJ and Keane J). The applicant submitted that the initial refusal decision had practical, adverse effects on his interests because the applicant did not have the benefit of the full inspector report in prosecuting his claims against his former employer, Australia Post. While the applicant was later given an unredacted copy, he submitted that he was nonetheless aggrieved by the delay and the expense of time and money in obtaining it. The applicant reiterated the submission that he could not practically have sought judicial review until the Commissioner completed her review. Further, the applicant submitted that his right to access the report pursuant to s 11(1) of the FOI Act had not been vindicated by the substituted decision because the reasons did not engage with the initial refusal or declare his right to access the report.

42    In reply, Comcare submitted that the applicant’s right to access the report was vindicated by his being given an unredacted copy. Put differently, this submission was that it is not sufficient to make the applicant a person aggrieved that he is affected by the quality of the reasons rather than the outcome of the decision.

The applicant is not a person aggrieved

43    At the time of lodging the application in this proceeding the applicant was not a person aggrieved by Comcare’s initial decision to refuse access to the report. That decision ceased to have any actual or apparent legal effect and had no continuing legal or practical consequences once Comcare made the substituted decision giving the applicant full access to the report.

44    The applicant’s submissions tended to elide the distinction between a decision and its attendant reasons. A decision is “final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration”: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 (Mason CJ). Reasons are explanatory of a decision and are often a requirement that accompanies the discharge of a statutory decision-making function. In this case, reasons for refusing access to the report were required by s 26 of the FOI Act. Reasons may reveal some error in the decision-making process which justifies relief being granted in respect of the decision, but the reasons are not the decision. The distinction between a decision and reasons for a decision is illustrated by s 13 of the ADJR Act, which creates a statutory right to a statement of reasons that is subject to the same restriction on standing as applications for judicial review – namely, that the applicant must be a person who is entitled to make an application under s 5 of the Act which carries with it a requirement that the person is aggrieved by the decision. A person could only be aggrieved by a decision in respect of which reasons have not yet been furnished if the reasons were independent of the decision. See also in the context of jurisdictional error the distinction between a decision and the reasons for a decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56; 216 CLR 212.

45    The applicant’s primary submission fixed upon the effect of the initial decision on his interests in the period prior to the substituted decision, being his expenditure of time and money to obtain the document by other means. It can readily be accepted that the applicant was aggrieved by the initial decision during this period. However, s 5(1) is expressed in the present tense. It permits a “person who is aggrieved by a decision to which this Act applies” to make an application to the Court in the manner prescribed by s 11(1) for an order of review. Subsection 3(4) provides that a reference to a person aggrieved by a decision includes “a person whose interests are adversely affected by the decision”. The Court’s jurisdiction under the ADJR Act affords no power to order, and is not concerned with, remedies for past disappointment consequent upon an administrative decision which no longer has any legal consequences. In an allied context concerning the remedy of certiorari, in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 the Court held at [25] –

The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an “apparent legal effect”. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.

(Citation omitted.)

46    The applicant must therefore establish some present connection between the initial decision and his interests at the time of making his application under the ADJR Act. He cannot do so because the initial decision became inoperative when it was set aside and substituted by the new decision which occurred prior to the lodging of this application: s 55G(1). The substituted decision became the sole decision for review by the Information Commissioner: s 55G(2). The initial decision then had no apparent legal effect.

47    Further, to permit the applicant to pursue a declaration in respect of the initial refusal would be to hold that a proceeding could be brought in respect of an inoperative decision of no apparent legal effect which was superseded during a process of merits review. A person’s interest in reviewing an unfavourable but inoperative decision is “a mere emotional attachment or intellectual pursuit or satisfaction” which is insufficient to make the person aggrieved: Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50, 68 (Lockhart J). That is so notwithstanding that the person may have been put to some expense or inconvenience in the period during which the original decision was operative. As I have said above, a remedy for disappointment is not a form of relief available on an application under the ADJR Act.

48    The applicant’s alternative submission that he remained aggrieved by the initial decision because his right to access the document was not properly vindicated by the terms of the subsequent decision should also be rejected. The applicant must establish that he is aggrieved by the decision, not the quality of Comcare’s reasons for giving him access to the report. Part of the applicant’s complaint as to the quality of Comcare’s reasons is that the subsequent decision did not reconsider the conditional exemptions relied on by the initial decision-maker. However, in deciding to give access Comcare was not required to address the conditional exemptions that informed its initial decision. The exercise of the power in s 55G(1) of the FOI Act resulted in a fresh decision. It is a remedial power that is exercisable during a process of merits review which involves the decision-maker making another decision on the basis of the material available at the time of the exercise of the power. The subsequent decision-maker was therefore not bound to reconsider the matters addressed in the reasons for the original decision.

Issue 3: Does the applicant have reasonable prospects of establishing the grounds of review?

The Commissioner

49    As identified at [25] above, the applicant advanced two grounds of review in relation to the Commissioner’s decision. The first ground alleged unreasonable delay in making the decision. The second ground alleged that the Commissioner’s exercise of the discretionary power under s 54W(a)(i) of the FOI Act not to continue the IC review was so unreasonable that no reasonable decision maker could have so exercised the discretion.

50    The Commissioner submitted that the two grounds of judicial review advanced in respect of her decision had no reasonable prospects of success.

51    In relation to the first ground directed to unreasonable delay in the IC review, the Commissioner submitted that applicant could not succeed because relief under s 16(3) of the ADJR Act is only available where there has been a failure to make a decision and submitted that the exercise of the discretionary power not to continue the review under s 54W removed the duty to make a decision under s 55K. The Commissioner relied on the reference to “exit points” in the scheme of IC review decision-making in Patrick v Australian Information Commissioner (No 2) [2023] FCA 530 (Patrick) at [44], affirmed on appeal in Patrick v Australian Information Commissioner [2024] FCAFC 93; 304 FCR 1. The Commissioner submitted that there had not been a failure to make a decision in circumstances where the Commissioner had made a decision not to continue the IC review.

52    As to the underlying factual foundation of the applicant’s second ground alleging unreasonable delay the Commissioner initially submitted that the applicant would not be able to establish that the delay in making the substituted decision was legally unreasonable. In making this submission, the Commissioner sought to rely on the factual findings that were made in Patrick. However, factual findings are not precedents and have no binding force unless some preclusion against relitigation is engaged, such as res judicata, issue estoppel, or abuse of process. No such preclusion arises here because Patrick concerned different parties and different facts. Further, at the hearing I rejected the Commissioner’s attempt to tender the reasons for judgment in Patrick. The tender was rejected because the reasons are not admissible to prove the existence of any fact that was in issue in that proceeding: Evidence Act 1995 (Cth), s 91(1). The Commissioner ultimately conceded that without being able to rely on the findings in Patrick there may be a triable question in relation to whether there had in fact been unreasonable delay. It is sufficient to dispose of this aspect of the Commissioner’s submissions on the basis that the Commissioner correctly accepted that, on the assumption that some remedy is available to the applicant in respect of the claimed unreasonable delay (which I consider below), the Commissioner has not shown that the applicant has no reasonable prospect of establishing as a fact that there was unreasonable delay.

53    In relation to the substance of the second ground, which claimed that the Commissioner’s decision not to continue the IC review was so unreasonable that no reasonable decision maker could have exercised the discretion in that way, the Commissioner submitted that it had no reasonable prospects of success. The Commissioner submitted that the formulation of unreasonableness in s 5(2)(g) of the ADJR Act set a high hurdle for the applicant, and that the Commissioner had a degree of decisional freedom in determining whether to continue to undertake IC reviews where competing demands on resources were a permissible consideration.

54    In response, the applicant’s submissions commenced from the premise that Comcare’s initial decision to refuse access was attended with error. The applicant submitted that the Commissioner’s decision not to continue the IC review had the practical effect that Comcare’s initial decision and the reasoning underpinning it was left without review. The applicant submitted that the effect of the Commissioner’s decision not to continue the IC review led to a real risk that similar decisions might continue to be made by Comcare refusing access to inspector reports on erroneous grounds. The applicant submitted that it was not reasonably open to the Commissioner to decide not to continue to undertake the IC review on the basis that there were no outstanding issues within the scope of the IC review given what the applicant submitted was the wholly erroneous reasoning underpinning Comcare’s original access refusal decision.

55    The applicant then linked the above submissions to the first ground of review alleging unreasonable delay. The applicant submitted that the purported exercise of the discretionary power under s 54W of the FOI Act by the Commissioner should not prevent the Court from separately finding that the Commissioner failed to make a decision under s 55K of the FOI Act as required. The applicant submitted that the Commissioner’s duty to make a decision under s 55K arose once the application for the IC review was made, as did the duty to do so within a reasonable time. The applicant submitted that if the Court accepted the claim that the exercise of the power not to continue the IC review under s 54W was unreasonable, and the purported exercise of that discretion was invalid, then it would follow that the duty to make the decision under s 55K had not been extinguished.

56    I accept the Commissioner’s submissions that the applicant has no reasonable prospect of successfully prosecuting the two grounds of review that were advanced in relation to the Commissioner’s decision.

57    Commencing with the first ground alleging unreasonable delay, s 7 of the ADJR Act addresses two circumstances in which an application may be made in relation to a failure to make a decision. The first circumstance, which is applicable to the IC review decision, is under s 7(1) where there is no law that prescribes a period within which the person is required to make the decision. Where s 7(1) is applicable, the ground of review is that there has been unreasonable delay in making the decision. The second circumstance is under s 7(2), which applies where there is a law that prescribes a period within which the person is required to make the decision. Where s 7(2) is applicable, the ground of review is that the person has a duty to make the decision notwithstanding the expiration of the prescribed period.

58    Subsections 7(1) and (2) of the ADJR Act are both concerned with a situation where there is an unfulfilled duty to make a decision. Subsection 7(1) uses the present perfect tense in the phrases “has failed to make that decision”, and “there has been unreasonable delay in making the decision”. Both phrases point to a requirement of the ground of review that there be a continuing failure to make a decision. Subsection 7(2) is consistent with this construction, because in the case of a failure to make a decision within a prescribed period, the ground of review requires not just that there was a failure to make the decision, but also that there is a continuing duty to make the decision.

59    There is no reasonable prospect of the applicant establishing the ground of review under s 7(1) of the Act. At the time the applicant commenced this proceeding the Commissioner had decided not to continue the IC review and had thereby made a decision. Because the Commissioner had made a decision not to continue the IC review, at the time the proceeding was commenced there was no continuing failure to make a decision. It follows that the Court’s power to make orders under s 16 of the ADJR Act is not engaged because this proceeding is not capable of being an application under the ADJR Act for an order of review in respect of a failure to make a decision.

60    As to the applicant’s second ground of review directed to the Commissioner, the applicant’s submissions relied on unresolved grievances concerning Comcare’s initial decision to refuse access to the inspector report. But this was not the decision that was ultimately the subject of the IC review. The effect of s 55G(2)(b) of the FOI Act was that upon Comcare making the fresh decision to grant access to the report, the Commissioner was required to deal with the IC review application for review of the original decision as if it were an IC review application for the review of the varied or substituted decision. In these circumstances, where the applicant was granted access to the report, it is untenable to claim that the Commissioner’s decision not to continue the IC review was unreasonable for the reasons that the Commissioner gave, namely that the application for review was lacking in substance. It is simply not open on the material to claim that the Commissioner’s exercise of discretionary power in deciding not to continue the review was so unreasonable that no reasonable person could have so exercised the power.

Comcare

61    In relation to Comcare, Issue 3 arises only on the hypothesis that the applicant is a person aggrieved by its initial decision to refuse access to the report, which is a premise that I have rejected. What follows is therefore somewhat moot.

62    Comcare submitted that the two grounds of review advanced in respect of the initial refusal decision had no reasonable prospects of success. In relation to the first ground, being an alleged failure to take into account a relevant consideration as required by s 5(2)(b) of the ADJR Act, Comcare submitted that it could not succeed because there are no mandatory relevant considerations under the FOI Act. In relation to the second ground, Comcare submitted the applicant could not meet the standard of legal unreasonableness required by s 5(2)(g) of the FOI Act having regard to the conclusions in the initial refusal decision, which followed logically from detailed reasons and addressed the statutory requirements.

63    Comcare has not established that the applicant has no reasonable prospect of succeeding on the ground of unreasonableness on the hypothesis that the applicant is a person aggrieved by its initial decision to refuse access to the report. As the Full Court (Allsop CJ, Robertson and Mortimer JJ) stated in Minister for Immigration v Singh [2014] FCAFC 1; 308 ALR 280 at [42] –

Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence.

64    That is so whether the condition of reasonableness arises by implication in the statute as a condition on the exercise of power or as an express ground for a remedy under the ADJR Act. The only evidence adduced by Comcare on its interlocutory application that was relevant to its initial decision to refuse access was the report itself and its reasons for refusing access. In the absence of full argument as to the meaning and proper application of the phrase “substantial adverse effect” in the conditional exemptions, I cannot conduct the kind of careful, fact dependent evaluation required to assess legal unreasonableness, let alone conclude that the applicant has no reasonable prospects of demonstrating legal unreasonableness. In this regard, the applicant raised some tenable arguments in support of his claim that Comcare’s decision to invoke the exemptions was unreasonable that cannot be tested without a full hearing. Of course, at a final hearing the Court would be astute to ensure that any consideration of these arguments is against the criterion of unreasonableness in s 5(2)(g) of the ADJR Act and does not slide into a de facto merits-based review.

Issue 4: Does the applicant have any reasonable prospect of obtaining the declaratory relief which he claims?

65    The applicant has no reasonable prospect of obtaining the declaratory relief that he claims because for the reasons I have given he has no reasonable prospect of establishing the grounds of review that are advanced.

66    The parties addressed considered submissions to the separate question whether there was any reasonable prospect that the Court would exercise the discretionary power under s 16 of the ADJR Act to make the declarations sought by the applicant in relation to the Commissioner’s delay, the Commissioner’s decision not to continue the IC review, and Comcare’s initial decision refusing access to the report. To consider the separate question of remedies invites an examination of that question on the artificial premise that the applicant has reasonable prospects of establishing the basis upon which relief is sought, when I have held he does not.

67    It is unnecessary to consider the separate question of remedies when it is plain that the applicant has no reasonable prospect of making out his grounds of review.

Conclusions

68    The proceeding will be dismissed under s 31A(2) of the Federal Court of Australia Act on the ground that I am satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. Concurrently, as against Comcare the application is not competent because the applicant has not demonstrated that he is a person aggrieved by a decision and therefore the application is dismissed pursuant to r 31.05(5). Summary dismissal of the proceeding gives effect to the Court’s overarching purpose to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act, s 37M; Ascic v Australian Federal Police [2025] FCA 124 at [27] (Feutrill J).

69    The respondents sought costs. There is no reason why costs should not follow the event.

Final remarks

70    The applicant was ably represented by two members of the Victorian Bar, Ms Annabelle Ballard and then Ms Stephanie Clancy who gave their time pro bono to assist the applicant and the Court. They did so in the finest traditions of the Australian Bars, and they are to be commended.

Associate:

Dated:    21 August 2026