Federal Court of Australia

Saywell v Comcare (No 2) [2026] FCA 1614

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the Respondent’s costs of the application, including any costs thrown away by reason of the proposed amended notice of appeal, on a lump sum basis, to be assessed by a Registrar of the Court, if not agreed.

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

REASONS FOR JUDGMENT

ANDERSON J:

INTRODUCTION

1    On 11 June 2025, the applicant applied for an extension of time in which to appeal from a decision of the Administrative Review Tribunal (Tribunal) dated 16 April 2025. By that decision, the Tribunal affirmed the decision of the respondent (Comcare) to refuse access to documents requested under the Freedom of Information Act 1982 (Cth) (FOI Act), relevantly on the basis that the documents were exempt under s 42 because they were subject to legal professional privilege.

2    An appeal must ordinarily be filed no later than 28 days after the Tribunal gives the party its statement of reasons: Administrative Review Tribunal Act 2024 (Cth) s 174(1)(a). However, where a person applies to refer the decision to the Guidance and Appeals Panel of the Tribunal, any day in the period between the day the referral application is made and the day the President refers the decision or refuses the application is not taken into account in calculating that
28-day period: s 174(3). The Court may extend the period within which an appeal may be made: s 174(2). Accordingly, unless an extension is granted, an appeal filed outside the period prescribed by s 174 cannot proceed.

3    The proposed appeal was filed 23 days out of time. The parties’ material said that the proposed appeal was filed 24 days out of time; it is unclear how this has been calculated. The Tribunal’s decision was handed down on 16 April 2025. On 12 May 2025, the applicant applied to the GAP. The applicant deposes that he was notified of the GAP’s decision on 16 May 2025, however, the letter from the GAP is dated 15 May 2025 and no covering email (ie, with a date of 16 May 2025) was tendered. It therefore appears that the time period to be excluded is
12–15 May 2025 rather than 12–16 May 2025. Either way, the result is the same. If the period 12–16 May 2025 is excluded, the 28-day period expired on 19 May 2025. If the period
12–15 May 2025 is excluded, the 28th day was 18 May 2025, which was a Sunday and so the last day for filing the notice of appeal was 19 May 2025: see s 36(2) of the Acts Interpretation Act 1901 (Cth).

4    By interlocutory application filed 26 August 2026 the applicant applies for leave to file a proposed amended notice of appeal.

5    The application to rely on the amended notice of appeal was filed over a week after Comcare had filed its written submissions. Comcare opposed the grant of leave for the applicant to rely on the amended notice of appeal. However, counsel for Comcare, Ms McInnes, accepted that she could address the amended notice of appeal orally. On that basis, I granted leave for the applicant to rely on the proposed amended notice of appeal, with the usual order that the applicant pay Comcare’s costs thrown away.

Background

6    On 12 April 2024, the applicant made a Freedom of Information (FOI) request to Comcare seeking any communication between Comcare and Kate Watson, a lawyer from HBA Legal, relating to an email from the applicant dated 22 February 2024 in a separate, earlier Tribunal proceeding (2023/7232), in which HBA Legal acted for Comcare: Tribunal’s reasons (T) [1].

7    The FOI request arose from an earlier compensation proceeding between the applicant and Comcare in the Tribunal in which the applicant sent an email, on 22 February 2024, purporting to be submissions, to Comcare and the Tribunal but not to Ms Watson or anyone else at HBA Legal. On 13 March 2024, Ms Watson advised the Tribunal that she had not been served with the applicant’s submissions and requested that they be provided to her. The applicant subsequently alleged that Ms Watson had in fact been aware of his submissions before that date. That allegation formed part of the basis upon which he contended before the Tribunal that privilege did not attach to the documents sought under the FOI Act: T [2]–[5].

8    Comcare refused to grant access to the requested documents on 13 May 2024: T [1].

9    The applicant subsequently requested that Comcare provide him with edited copies of the documents notwithstanding its position that all substantive material was exempt, with the result that the edited copies would consist of blank or fully redacted pages. Comcare did so: T [43].

The parties’ positions in the Tribunal

10    There are two documents falling within the scope of the applicant’s FOI request, both of which are email chains: T [6]. Document 1 is described by the Tribunal (at T [21]) as:

[A]n eight-page email chain in reverse chronological order. The most recent emails are between Comcare and Ms Watson dated 22 March 2024 in which advice is sought and is given in relation to the Applicant’s compensation claim … Included in the email chain are emails of an earlier date relevant to the legal advice being given.

11    Document 2 is described as consisting of two more recent emails and then the same email chain that comprises Document 1: T [6].

12    Comcare claimed that Document 1 is exempt in full under s 42 of the FOI Act. In relation to Document 2, Comcare claimed that the two most recent emails are irrelevant to the request and the balance (consisting of the same emails as Document 1) is exempt under s 42 of the FOI Act: T [6].

13    Before the Tribunal, the applicant accepted that, subject to his contentions concerning waiver, the documents are privileged (apart from the emails in Document 2 which are irrelevant): T [19]. The applicant contended that privilege had been waived and that, in any event, privilege did not attach because the communications were made for an illegal or improper purpose: T [24]–[25]. He also contended that Comcare had not complied with its obligations under s 22 of the FOI Act: T [5].

The Tribunal Decision

14    On 16 April 2025, the Tribunal affirmed the decision under review and concluded that Comcare had not breached any of its obligations under s 22 of the FOI Act: T [46]–[48]. Because Document 2 consists of the same email chain as Document 1 (apart from the irrelevant emails), the Tribunal applied that same analysis in respect of both documents.

15    The Tribunal rejected the applicant’s contentions concerning privilege. First, the Tribunal found there had been no waiver, in part because “the 13 March 2024 email could not have waived privilege in a communication that had not even been made until 22 March 2024”: T [24]. Second, in relation to the allegation of an improper purpose, the Tribunal found that there was “no evidence whatsoever of any improper conduct by Ms Watson or Comcare and certainly no evidence of any improper or illegal purpose”: T [31]. It concluded that the communications were not made for an illegal or improper purpose or to further or assist a crime or fraud: T [25]–[32].

16    The Tribunal then considered whether the material that had been redacted from Document 2 was within the scope of the FOI request and concluded that it was not. The Tribunal found that the correct decision was to refuse access to those parts of Document 2: T [34].

17    The Tribunal 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) (noting all requirements in (a)–(d) must be satisfied) were not satisfied: T [34]–[42].

18    The Tribunal noted that Comcare had, at the applicant’s insistence, provided the applicant with a fully redacted copy of Documents 1 and 2 (despite not being legally obliged to do so), and that the applicant contended that the Tribunal was required to consider whether Comcare complied with its obligation under s 22(2)(b) of the FOI Act. The Tribunal 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: T [43]–[46].

Application for an extension of time to appeal from the Tribunal’s decision

19    An appeal to this Court from a decision of the Tribunal is confined to a question of law: ART Act s 172(1).

20    As Banks-Smith J said in Australian Securities and Investments Commission v Comcare [2021] FCA 1498 at [20]:

Although characterised as an ‘appeal’, the proceeding is an application in the Court’s original jurisdiction. It is confined to questions of law and the subject matter and scope of the proceeding is limited to those questions of law. It does not extend to a re-hearing of the whole matter. Importantly, it is not for the Court to remake findings of fact as made by the Tribunal.

21    As I have said, the notice of appeal was filed 23 days out of time. The Court may extend the period within which an appeal may be made: s 174(2). Accordingly, unless an extension is granted, an appeal filed outside the period prescribed by s 174 cannot proceed.

22    The considerations relevant to whether an extension of time should be granted ordinarily include the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 at 348–349.

23    Comcare opposes the application for an extension of time. It accepts that the delay is not lengthy and does not contend that it would suffer any particular prejudice if an extension were granted. It also accepts that the applicant’s attempt to pursue review by the GAP provides a reasonable explanation for the period up to 16 May 2025 (or 15 May 2025).

24    The applicant’s explanation in his affidavit filed 11 June 2025 is as follows:

(d)    At the time of ART GAP notification of ineligibility the Applicant was located in outback Queensland, more specifically Roma, travelling on personal matters.

(e)    On Thursday 16 May 2025 the Applicant prepared a suite of draft documents for submission with the Federal Court of Australia as well as providing copies of those documents and notification of intended lodgment to Federal Court of Australia ACT Registry & eLodgment Admin emails, ART Reviews and the Respondent.

(f)    On Friday 17 May 2025 the Applicant sought to swear an affidavit and take other steps towards submission of documents but was unable to complete all required procedures in the circumstances.

(g)    The Applicant has since that time been taking reasonable steps seeking to properly complete the Federal Court eLodgment process.

(Note that 16 May 2025 was a Friday and 17 May 2025 was a Saturday).

25    Comcare submits that the applicant’s explanation for the delay is less than satisfactory. By 16 May 2025, the applicant knew that the GAP would not review the Tribunal’s decision and, on his own account, had prepared draft documents for filing in this Court. Comcare submits that the applicant’s travel to Queensland and the practical difficulties he describes may explain some further delay, but the assertion that he thereafter took “reasonable steps” to complete the filing process does not identify what those steps were or explain why the application was not filed until 11 June 2025.

26    I accept Comcare’s submission that the applicant’s affidavit evidence does not provide a satisfactory explanation for the delay that was occasioned after 16 May 2025 and why the application was not filed until 11 June 2025.

27    More significantly, the appeal, for the reasons stated below, lacks any merit. The matters raised in the amended notice of appeal do not identify a question of law, nor do they disclose any error of law in the Tribunal’s decision.

28    In those circumstances, there is no sufficient basis to extend time to permit the proposed appeal to proceed.

29    Before turning to the merits of the proposed appeal, or rather its lack thereof, there is one further matter. During the hearing the applicant requested that an unredacted copy of the responsive documents, which were before the Tribunal, be tendered. Comcare, while submitting that that was not necessary, did not oppose this course, and so I accepted the bundle into evidence as a confidential exhibit.

30    After the hearing, the applicant emailed my chambers and said:

During today’s hearing for the matter the Respondent provided the Court with a copy of the Documents in Issue for the matter under review, which was marked as Exhibit A. Whilst I understand that I am not entitled to access the document itself on the basis of His Honour’s confidentiality order I would ask to be provided with the file metadata information, being at a minimum;

•    File name

•    File size

•    File create date

•    Comcare Document Title

This will ensure the material that is before His Honour for the purposes of the Judgment is properly disclosed to all parties.

31    At my direction, my associate replied to the applicant saying, “Justice Anderson has directed chambers to respond that it is not appropriate to disclose the requested information.” The applicant then sent an email to my chambers requesting that I “provide written details of [my] considerations in that regard as part of [my] decision when handed down”. It is not appropriate for the Court to provide metadata to an applicant in relation to a document which is subject to legal professional privilege and has been ordered to be confidential, on the basis of an email after the conclusion of the hearing.

The proposed appeal lacks merit

32    The amended notice of appeal does not identify how the matters relied upon are said to raise a question of law or disclose an error of law in the Tribunal’s decision. The amended notice of appeal says the following under the heading “Questions of law”:

1.    The Respondent submitted a document which was false in a material particular thus contravening Cwth Criminal Code Act 1995 s.137.2 False or misleading document and constituting a Contempt of Tribunal under ART Act 2024 s.120.

2.    The Respondent has maintained the submission of a document which is false in a material particular during these Federal Court proceedings constituting a Contempt of Court under Federal Court Act 1976 s.31.

3.    The Respondent failed to comply with ART Act s.23/s.25 relating to the decision makers obligation to produce to the Tribunal all relevant documents.

33    The grounds relied on are said to be:

1.    The Respondent did not produce document title 00206BF4AF36240502141023 to the ART in the decision under appeal despite it being a relevant document.

2.    The Respondent did not produce the documents in issue for FOI 2024/1917 to the ART in the decision under appeal despite it being a relevant document.

3.    The Respondent provided 17 blank pages other than redaction markings to ART purporting them to be a copy of document title 00206BF4AF36240502141023, yet has subsequently maintained LPP claim over document title 00206BF4AF36240502141023 proving it cannot be the source document for the material presented. This position has been maintained by the Respondent in these Federal Court proceedings.

34    In oral submissions the applicant framed the amended notice as restricting the grounds of the appeal to two primary elements: the failure to submit relevant documents and also the submission of false documents to the Tribunal in the matter under appeal.

35    As I have said, an appeal to this Court under s 172 of the ART Act is confined to questions of law: see generally Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ), referred to with approval in SDCV v Director-General of Security [2022] HCA 32; 277 CLR 241 at [281] (Steward J) and Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39; 274 CLR 565 at [36] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ).

36    I accept that whether the proposed notice of appeal raises a question of law is a matter of substance and not form. Further, as to the jurisdiction of the Court, as Wigney J said in P v Child Support Registrar [2013] FCA 1312; 138 ALD 563 at [53] (approved in Haritos at [103]), in relation to the position of self-represented litigants:

A question which is inelegantly drafted may nonetheless be a question of law which attracts the jurisdiction of this court if its purport is tolerably clear having regard to the context in which it appears: Ergon Energy Corp Ltd v Cmr of Taxation (2006) 153 FCR 551 at [51]. In an appropriate case the Court itself may be “prepared to frame questions in order to found its jurisdiction”: Secretary, Department of Education, Employment and Workplace Relations v Ergin (2010) 54 AAR 60 at [11]; 119 ALD 155 at 159; Rana at [16]; Goodricke v Comcare (2011) 55 AAR 188 at [14]–[22]; 122 ALD 546 at 549–550. An appropriate case may arise where, as here, an applicant is unrepresented and where it is possible to discern a question which, if properly framed, could found the jurisdiction of the Court: Hoe v Manningham City Council [2011] VSC 37 at [6]–[7]; Kolya v Tax Practitioners Board (2012) 87 ATR 474 (Kolya) at [8].

37    I also accept, as Abraham J said in Onassys v Comcare [2022] FCA 90 at [19]–[22]:

In cases of doubt, the Court will consider the notice of appeal, the alleged question or questions of law, the grounds raised, the statutory context, the Tribunal’s reasons for its decision and, having considered all those matters, satisfy itself that there is in fact a question of law: Haritos at [94]. If the question, properly analysed, is not a question of law, no amount of formulary can make it into a question of law: Haritos at [92].

…

The fact that an appellant is unrepresented is a relevant matter to be taken into account … The notice of appeal should be read fairly and as a whole, particularly in cases involving unrepresented parties: Haritos at [104], citing Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 at [75]–[77]. Where as a matter of substance a question of law exists, the Court has a procedural discretion to grant leave for an amended notice of appeal to be filed: Haritos at [107]. In appropriate cases, the Court may reframe the questions relied upon so as to give precision to an inelegantly specified question of law, however care must be taken, especially in the face of an objection to competency, not to “visit on a respondent party a judicially attractive question of law which the notice does not fairly raise”: Secretary, Department of Education, Employment and Workplace Relations v Ergin [2010] FCA 1438 at [11]; Rana v Repatriation Commission [2011] FCAFC 124 at [14] .

The role of the Court is not to conduct a merits review … The Court is not at liberty to find the facts on which a question of law might emerge, nor is it sufficient to merely assert that the Tribunal erred in law in making a particular finding: Palassis at [30]. Even if the Tribunal erred in its conclusions on the facts, such error does not in itself constitute an error of law: Australian Postal Corporation v Edwards [2014] FCA 1348 at [39]. The decision as to what evidence is to be accepted is a matter for the Tribunal and it is not the function of this Court to review the Tribunal’s factual findings and to substitute its view of the facts for those of the Tribunal: Comcare v Moon [2003] FCA 569 at [33].

38    Further, as Colvin J said in Rindeklev v Comcare [2024] FCA 1023 at [10] (citing Brown v Repatriation Commission (1985) 7 FCR 302 at 304 (Bowen CJ, Fisher and Lockhart JJ)), “[t]he existence of a question of law is both the qualifying condition for the application and its sole subject matter”.

39    The issue is that the “questions of law”, and indeed the grounds of appeal sought to be relied on, are allegations about Comcare’s obligations and actions in the proceeding before the Tribunal. It is not possible to frame the allegations as questions of law because the applicant does not articulate any error by the Tribunal. The applicant does not challenge the Tribunal’s decision either by the stated questions of law or by the grounds relied on.

40    Nonetheless, doing the best I can, I will outline what the applicant’s complaints are. They seem to centre on a belief in the existence of a prior edited copy of the redacted, blank 17-page document provided to him by Comcare. The applicant asserts that Comcare was required to disclose this asserted prior edited version to the Tribunal but did not. The applicant also asserts there is an additional document that Comcare found to be responsive to a different FOI request which ought to have been provided to the Tribunal.

41    As best as I can make out, the applicant’s complaint arose from the following events.

42    As I have said, the applicant’s FOI request arose from an email the applicant sent on 22 February 2024 in the prior Tribunal proceeding. Comcare determined that two email chains were responsive but that one was wholly privileged and the other was part privileged with the non-privileged emails being irrelevant. Nonetheless, the applicant requested the provision of an edited copy of the documents and so, on 21 May 2024, Comcare provided him with a fully redacted copy of the two documents – being the blank 17-page document. It is this FOI request which the applicant sought review of in the Tribunal (and is now seeking an extension of time in this Court to appeal the Tribunal’s decision).

43    Separately, the applicant made two further FOI requests. On 12 August 2024, he made a request for:

[A]ny document, email or other record produced during the period 22 February – 12 March 2024 inclusive relating to: Any communication between Comcare and Ms Kate Watson (HBA Legal) relating to the applicants email in AAT Case 2023/7232 titled ‘FW: 2023/7232 - RE Saywell and Comcare -Summonsed Material’ of 22 February 2024.

44    In response, Comcare determined that it had one responsive document of 16 pages but refused access on the basis of legal professional privilege.

45    The applicant then made a further FOI request on 18 December 2024 for the metadata of edited documents produced under s 22 of the FOI Act in relation to the FOI request the subject of this application. Comcare released metadata in respect of the two documents that were identified as responsive. The metadata which was provided to the applicant has led him to assert that two distinct edited documents exist relating to the FOI request under review: one created on 2 May 2024 and the other created on 20 May 2024.

46    The applicant also says that the decision of Comcare dated 13 May 2024 in respect of the FOI request under review included a statement by the delegate that she had “also removed information contained in the documents that is not relevant to the scope of [the applicant’s] request under section 22 of the FOI Act”. The applicant says that the blank 17-page document which he was provided on 21 May 2024 was created on 20 May 2024. He therefore asserts that there is some other, earlier edited document made on 2 May 2024.

47    Comcare denies the existence of this further version of the document – referred to by the applicant as the “primary edited document”. Comcare says that the edited document provided to the applicant was created by first applying transparent redactions (ie, transparent textboxes) over the content of the document and by then printing and scanning the document such that the redactions were applied.

48    The fundamental issue is, as I said at [42] in Saywell v Comcare [2026] FCA 137, that while the applicant provided Comcare’s decision and other correspondence related to the later 12 August 2024 FOI request to the Tribunal, he did not tender those documents in the hearing before the Tribunal. The applicant does not assert that he sought to tender the documents and that they were incorrectly refused or that the Tribunal erred in some other way by not considering the documents. I also note that the transcript of the Tribunal hearing was not tendered. Further, Comcare did not provide the underlying responsive document to the Tribunal. This seems to be the core of the applicant’s complaint. The applicant did request that the Tribunal issue a summons to Comcare for “[a]ll edited copies of documents produced under FOI Act s.22” in relation to the FOI request under review, and this was refused by the Tribunal on 11 February 2025. There is no evidence as to any summons in respect of either of the subsequent FOI requests. There is no discernible basis on which Comcare was required to produce the underlying document responsive to the 12 August 2024 FOI request. The most the applicant did was to assert, in an email to the Tribunal registry five days before the hearing, that it “must be made available to the Tribunal”. These documents are not relevant to the Tribunal’s decision. In any event, the Tribunal explained that the contention that all edited documents must be provided under s 22(2)(b) had no relevance to the issues before it: T [44].

49    Further, the Tribunal’s task was to conduct a merits review of the FOI decision and determine for itself whether access was required to be given. It had the unredacted documents before it. It found that Document 1 is privileged; that the two most recent emails in Document 2 are irrelevant; and that the balance of Document 2 is privileged. It further held that Comcare was not required to produce an edited copy under s 22 where removal of the exempt and irrelevant material would leave no substantive content. The applicant does not point to any error on the part of the Tribunal in coming to these conclusions. Therefore, in circumstances where (a) Comcare had provided the Tribunal with the unredacted copies of the original documents, (b) the documents were found to be privileged and/or irrelevant and (c) it was found there was no obligation for Comcare to provide an edited copy to the applicant, there is no basis for the contention that Comcare was required to provide some other, edited version to either the applicant or the Tribunal.

50    It is worth emphasising that the Tribunal’s task was to review the reviewable decision before it. The Tribunal did not have a general duty to undertake inquiries into the applicant’s allegations regarding other FOI requests and alleged inconsistencies: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [1]–[25]. This was not a case involving a failure by the Tribunal to make an obvious inquiry about a critical fact, the existence of which was easily ascertained: SZIAI at [25]. The applicant’s submissions misconceive the Tribunal’s function.

51    Finally, insofar as the applicant’s complaint about Comcare providing a false document to the Tribunal overlaps with his submissions made to the Tribunal in respect of Comcare’s conduct before the Tribunal, it is not the function of this Court to review the Tribunal’s factual findings and to substitute its view of the facts for those of the Tribunal. At T [25]–[32] the Tribunal considered the applicant’s claim that the documents were not privileged due to improper conduct on the part of Ms Watson and/or Comcare. The Tribunal found there was no basis for that claim. The allegations concerning the provision of a false or misleading document by Comcare to the Tribunal do not raise a question of law in connection with the Tribunal’s decision.

52    I now turn to consider the second question of law, by which the applicant attempts to raise an argument that Comcare is guilty of contempt. I pause to note that the applicant has previously attempted to bring contempt proceedings against Comcare, and I held that the filed statement of charge was incompetent and fundamentally defective: Saywell v Comcare [2026] FCA 137 at [21]–[36]. At [19]–[20] of that decision I outlined the procedural requirements in respect to an allegation of contempt. An allegation of contempt of court is a serious matter. In short, where a party alleges contempt in connection with a proceeding in this Court, the allegation must be made by an interlocutory application supported by a statement of charge which specifies, with sufficient particularity, the alleged contempt so as to enable the person charged to answer it. If the contempt is not in connection with a proceeding in this Court, an originating application must be filed: see [27] of Saywell v Comcare. Clearly, those requirements have not been met. More relevantly to this application, an allegation of contempt on the part of Comcare does not raise or relate to any question of law in respect to the Tribunal’s decision. There is no merit to this proposed question of law.

53    The final question of law alleges that Comcare failed to comply with ss 23 and 25 of the ART Act. Section 23 is as follows:

Within 28 days after the Tribunal notifies the decision-maker for a decision of an application for review of the decision, the decision-maker must give the Tribunal:

(a)    a statement of reasons for the decision; and

(b)    a copy of every other document that is:

(i)    in the possession or under the control of the decision-maker; and

(ii)    relevant to the Tribunal’s review of the decision.

54    Section 25 is as follows:

If:

(a)    at any time during the Tribunal’s review of a decision, a document that is relevant to the review comes into the possession or under the control of the decision-maker; and

(b)    the document has not been given to the Tribunal for the purposes of the review;

the decision-maker must give a copy of the document to the Tribunal within 28 days after the day on which the document came into the possession or under the control of the decision-maker, or within a longer period specified in the practice directions.

55    The applicant relies on the same grounds and submissions as in respect to the first question of law. That is, this relates to the applicant’s contention that Comcare was required to, but did not, disclose to the Tribunal the asserted other edited version of the 17-page responsive document and the document responsive to the later FOI request. For the same reasons as I have already articulated, this does not raise a question of law.

56    Further, even if I were to read the applicant’s contention as being that the Tribunal permitted Comcare to withhold the documents in issue, that does not assist the applicant. Section 64 of the FOI Act governs the provision to the Tribunal of documents claimed to be exempt from production. The relevant parts of s 64 are as follows:

Production of exempt documents

(1)    Sections 23, 25 and 26 of the Administrative Review Tribunal Act 2024 do not apply in relation to a document that is claimed to be an exempt document, but in proceedings before the Tribunal in relation to such a document, the Tribunal may, for the purpose of deciding whether the document is an exempt document, require the document to be produced for inspection by members of the Tribunal only.

(1A)    If, for the purposes of proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document, the document is voluntarily produced to the Tribunal, then only:

(a)    the members of the Tribunal as constituted for the purposes of the review; or

(b)    a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff;

may inspect, or have access to, the document.

(2)    The Tribunal may require the production, for inspection by members of the Tribunal only, of an exempt document for the purpose of determining whether it is practicable for an agency or a Minister to grant access to a copy of the document with such deletions as to make the copy not an exempt document and, where an exempt document is produced by reason of such a requirement, the Tribunal shall, after inspection of the document by the members of the Tribunal as constituted for the purposes of the proceeding, return the document to the person by whom it was produced without permitting a person to have access to the document, or disclosing the contents of the document to a person, unless the person is:

(a)    a member of the Tribunal as constituted for the purposes of the proceeding; or

(b)    a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff; or

(c)    in the circumstances permitted under paragraph 60A(6)(a)—the Inspector-General of Intelligence and Security.

Note: The Tribunal is not entitled, under this section, to require production of documents that are exempt under section 33, 34 or 45A, but is entitled to do so under section 58E if the Tribunal is not satisfied by evidence on affidavit or otherwise that the document is an exempt document.

(4A)    In making an order for the purposes of subsection (1) or (2), the Tribunal may require the relevant document to be produced at any time later than 28 days after the decision-maker was given notice of the application, even if that time is before the Tribunal has begun to hear argument or otherwise deal with the matter.

57    The documents found to be responsive to the FOI request under review were provided to the Tribunal before the substantive hearing and were inspected by the Deputy President: T [7]. The Tribunal was able to determine the privilege and s 22 issues by reference to the documents themselves.

58    To the extent that the applicant now contends that some other document or version of a document contained additional material falling within the scope of his FOI request, the existence of another document or version of a document, without more, does not establish that Comcare withheld material which it was required to provide to the Tribunal or that the Tribunal failed to consider material relevant to the decision under review.

59    Further, at T [30], the Tribunal said:

The Applicant surmises at [57] of his SOFIC that the Respondent is not disclosing the documents in issue because “those documents directly illustrate that Ms Watson lied about her knowledge on the Applicant’s remarks in her email of 13 March 2024”. There is no evidence that Ms Watson lied in her email dated 13 March 2024, or more particularly that those instructing Ms Watson had sent her the Applicant’s 22 February 2024 email. Her statement that she had not been served with any submissions from the Applicant is entirely consistent with the fact that the Applicant had deliberately not included her or anyone from HBA Legal in his email of 22 February 2024, despite Ms Watson being the solicitor on the record.

60    To the extent the applicant seeks to challenge this finding, that is a request for this Court to impermissibly engage in a merits review.

Conclusion on merits

61    The proposed amended notice of appeal does not identify any question of law, let alone one that is reasonably arguable. The applicant’s submissions, in substantial part, seek to revisit factual allegations concerning the conduct of Comcare and Ms Watson which the Tribunal considered and rejected, and attempt to raise allegations of contempt.

62    The Tribunal’s reasons establish that the Tribunal identified the statutory questions it was required to determine; inspected the documents in issue; and considered the applicant’s contentions concerning privilege, improper purpose and s 22 of the FOI Act and gave reasons for rejecting them.

Disposition

63    For the reasons given, the appeal has no reasonable prospects of success and the application for an extension of time is dismissed. The applicant will pay Comcare’s costs.

Associate:

Dated:    29 October 2026