a Ba a & ee JUDGMENT No. 64.7. 81. CATCHWORDS ADMINISTRATIVE LAW - Judicial Review —- Appeal to Full Court - Appellant seeking review of "decision" of Attorney-General's Department refusing to grant legal assistance —- Appellant unrepresented -— Motion to strike out appeal upon failure to comply with certain directions. BETWEEN: PETER THOMAS GREGORY Appellant - and - PATRICK BRAZIL, SECRETARY ATTORNEY-GENERAL'S DEPARTMENT Respondent Coram: Fisher, Lockhart and Pincus JJ. Adelaide 19 November 1987 23 NOV 1987 FEDERAL SOURT OF 1 AUSTRALIA TaN © Seay ~ wo, 7 oe IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION ) ) ) No.36 of 1987 } ) BETWEEN: PETER THOMAS GREGORY Appellant - and - PATRICK BRAZIL, SECRETARY ATTORNEY-GENERAL'S DEPARTMENT Respondent MINUTES OF ORDER JUDGES MAKING ORDER WHERE MADE DATE OF ORDER THE COURT ORDERS THAT: i. The appeal be dismissed. 2. There be no order on the FISHER, LOCKHART & PINCUS JJ. ADELAIDE 19 NOVEMBER 1987 motion of the respondent herein except as to the costs thereof. 3. The appellant do pay the respondent's costs on _ the appeal and the said motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. tatty agree = Ae "3 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY ) No. 36 of 1987 ) GENERAL DIVISION ) BETWEEN: PETER THOMAS GREGORY Appellant AND: PATRICK BRAZIL, SECRETARY ATTORNEY-GENERAL'S DEPARTMENT Respondent COURT: FISHER, LOCKHART and PINCUS JJ. DATE: 19 NOVEMBER 1987 REASONS FOR JUDGMENT THE COURT This is an appeal from a judgment of a single Judge of this Court (Forster J.) given on 16 April 1987 dismissing the application of Peter Thomas Gregory, the appellant, under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") for an order of review of what the application describes as "the decision made by the Attorney-General's Department". On 29 April 1987 the appellant filed a notice of appeal from Forster J.''s judgment. On 23 September 1987 the respondent filed a notice of motion seeking orders dismissing the appeal with costs. It is plain from the evidence that the dismissal of the appeal was sought for want of prosecution by the appellant. eae wore wee re ewe Pov wagers cen or eee or 2. The history of the appeai may be briefly stated. The time fixed for settling the appeal papers was 27 May 1987 at 10.30 a.m.. On 27 May the Deputy Registrar directed the appellant, in accordance with Order 52 of this Court's Rules, to file and serve an index to the appeal papers at or before 4 p.m. on 9 June. On 18 June the Deputy Registrar rejected a collection of papers which had been presented to the South Australian District Registry of this Court by the appellant as appeal papers on the ground that it did not comply with Order 52. On the same day, after discussion with the appellant as to the contents of the appeal papers, the Deputy Registrar dictated to him the correct form of the index to the appeal papers and gave him a copy of a precedent. She also directed the appellant to file a copy of the index of appeal papers as dictated by her and serve a copy on the respondent's solicitors at or before 4 p.m. on 30 June and directed also that the appellant file four copies of the appeal books and serve one copy on the respondent's solicitor on or before 30 duly. The appellant did not comply with the direction as to the filing of a copy of the index of appeal papers (and a fortiori did not comply with the filing of four copies of the appeal books). On 17 July the matter came before Forster J. for a directions hearing. His Honour directed the appellant to file an index to the appeal papers by 24 July and to file five copies of the appeal papers and serve one copy on _ the respondent on or before 7 August. On 14 August the matter was called on before Fisher J. as the appellant still had not filed either an index to the appeal papers or the appeal books themselves. His Honour vacated the date previously fixed for the hearing of the matter, namely, Wednesday, 26 August and fixed Wednesday, 30 September (this was later varied to Monday, 28 September) for the Full Court of this Court to hear the appeal. His Honour also directed that the appellant 1 ceeerer ype ' Veo wae ewe wyoyt por wor eqres. . -- « a Sr ees % ml 3. file an index to the appeal papers not later than 4 p.m. on Friday, 28 August and that the appeal books be filed and served not later than 4 p.m. on 4 September. His Honour granted leave to the respondent to apply to strike out the appeal for want of prosecution if the appellant did not comply with the directions to which we have just referred. No index to the appeal papers and no appeal books have been filed or served. Mr. J.d. O'Halloran appeared for the respondent before both Forster J. and us. At the commencement of the argument on Monday 28 September he handed to each of us and to the appellant, who appeared in person as he did below, a folder containing copies of documents which the respondent regarded as necessary for the hearing of the motion. As the primary basis for the motion was the failure of the appellant to comply with orders of the Court on more than one occasion to file and serve an index to the appeal papers in accordance with Order 52 and as the folder appeared to contain many of the documents relevant to the appeal itself we took the course, with the concurrence of the parties, of hearing the appeal itself concurrently with the hearing of the motion for dismissal. The appellant then sought to refer us to a deal of material not in the folder. So, after hearing argument from both parties, we adjourned the further hearing of the appeal until Wednesday, 30 September and determined in the meantime which of the material relied on by the appellant could properly be before us. We arranged for the District Registrar of the Court to copy it and make a copy available to the appellant on Tuesday, 29 September. In addition to the material in the folder, which it was common ground should be before pease e propre pesar cre cesgciyoa ae > 4. us, we ruled that documents tendered by the appellant during an earlier directions hearing in the application for judicial review as exhibit "Al" could be relied on before us in the appeal and motion. That exhibit included a copy of a form of application dated 20 November 1986 which the appellant sought to file in this Court seeking a review of certain decisions. That form of application was not accepted by the District Registrar of this Court on various grounds which are set out ina letter of 28 November 1986 from the District Registrar to the appellant. A copy of the last mentioned letter was also included in exhibit "Al". The other documents in exhibit "Al" were correspondence between the appellant and the Attorney-General's Department, the appellant and the Department of Social Security and a copy of an application lodged by the appellant with the Administrative Appeals Tribunal ("the Tribunal") to which we shall refer later. The appellant also sought to rely on the transcript of all directions and other hearings in this matter. We read all these transcripts for the purpose of ruling on the question whether the appellant could rely upon them in this appeal and motion. We formed the opinion they were all irrelevant to the appeal except the transcript of the hearing on 16 April before Forster J. at the conclusion of which his Honour dismissed the application for judicial review which led to this appeal. Later, during argument we admitted some further material by consent. The appeal itself arises from the following circumstances. The appellant received certain social security unemployment benefits under the Social Security Act 1947, payment of which was discontinued by the Federal Government. We were informed by the appellant that he cme eS i 5 pt ree ce eee a = oe t Were Sts on eer te ' e4 aoe Pa was not prepared to sign a form which the Department of Social Security sent to him (a form of application for resumption of benefits) because it apparently required him to state that he had sought unsuccessfully to gain employment as a condition precedent to the application being accepted. As he put it in aletter of 3 November 1986 to the Commonwealth Attorney-General: "My reason for discontinuing receipt of Unemployment Benefits is that I maintain an unwillingness to accept a disadvantaged position during the pursuit of my application before the Administrative Appeals Tribunal, due to unsufficient understanding of my rights under law. My full-time attention is now given to amending this matter." The appellant told us that his reason for pursuing the proceedings in this Court and before the Administrative Appeals Tribunal, to which we shall refer in a moment, was to correct what he perceived to be an injustice done to him and for no other reason. The appellant wished to gain access to the documents which he assumed were held by the Department of Social Security relating to the benefits, payment of which had been terminated. His efforts to obtain the documents were unsuccessful apparently because, as the Department expressed it in its letter to the appellant of 28 October 1986: "These documents refer to the period you were in receipt of benefit from this Department prior to 28 June 1983. At that time you were being paid Unemployment Benefit through the Torrensville office of this Department. You reapplied for benefit on 12 December 1983, at Torrensville Regional Office following your return from Fiji. Normal practice at that time would have been to incorporate your previous papers with your new application for benefit, as your benefit had ceased less than twelve months previously, but in sen} were --er zy na "0, oo 6. your case this did not occur. Your previous file papers are no longer held by the Department, as they have been destroyed in accordance with approved Departmental Destruction Schedules. (File papers are months after a client's benefit then the papers destroyed). Consequently, I have refused copies of the documents under FOI Act on the ground that the held for twelve is terminated, and your request for Section 11 of the documents are not in the possession of the Department. If you disagree with this decision, you have a legal right to have it reviewed To do this, you should make by the Department. a request within twenty eight (28) days of receiving this letter. I have enclosed an appeals information leaflet which explains the review process, and a form which you may use to request a review. If you are still dissatisfied after a review, you may appeal to the Administrative Appeals Tribunal. If you are dissatisfied with the way the Department has handled your request, you may also complain to the Commonwealth Ombudsman." Section 11 of the Freedom of Information Act 1982 ("the Freedom of Information Act"), which is confers, subject to the Act, a right agencies conferred on every person. It that the letter of 28 October 1986 was writing of a decision made relating toa documents within the meaning of sub-s. Information Act which provides: referred to in the letter, of access to documents was common ground before intended to be a notice refusal to grant access of us in to 26(1) of the Freedom " 26(1) Where, in relation to a request, a decision is made relating to a refusal to grant access to a document in accordance with the request or deferring provision document, the decision-maker of access to a shall cause the applicant to be given notice in writing of the decision, and the notice shall - (a) state the findings on any material questions of — ee ee ares 7. of fact, referring to the material on which those findings were based, and state the reasons for the decision; (b) where the decision relates to a document of an agency, state the name and designation of the person giving the decision; and (c) give to the applicant appropriate information concerning — (i) his rights with respect to-review of the decision; (ii) his rights to make a complaint to the Ombudsman in relation to the decision; and {iii) the procedure for the exercise of the rights referred to in sub-paragraohs (i) and (ii), including (where applicable) particulars of the manner in which an application for review under section 54 may be made." Whether s. 26 can apply to documents which either do not exist or the non-existence of which is asserted by the decision-maker is a question which, for reasons to be given later, we do not find it necessary to determine. On 31 October 1986 the appellant applied to the Tribunal for a declaration under sub-s. 62(2) of the Freedom of Information Act which provides: "(2) If the Tribunal, upon application for a declaration under this sub-section made to it by a person to whom a notice has been furnished in pursuance of sub-section 26(1), considers that the notice does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other Material on which those findings were based or adequate particulars of the reasons for the decision, the Tribunal may make a declaration accordingly, and, where the Tribunal makes such a declaration, the person responsible for furnishing "~y " the notice shall, as soon as practicable but in any case within 28 days after the Tribunal makes the declaration, furnish to the applicant an additional notice or additional notices containing further and better particulars in relation to matters specified in the declaration with respect to those findings, that evidence or other material or those reasons." On 3 November 1986 the appellant lodged an application with the Attorney-General for assistance under s. 69 of the Administrative Appeals Tribunal Act 1975 ("the Administrative Appeals Tribunal Act"). The appellant informed us that he made that application so that he could better pursue his substantive application to the Tribunal for a declaration under sub-s. 62(2) of the Freedom of Information Act. On 7 November 1986 the Attorney-General's Department sent a letter to the appellant, received by him on 10 November 1986, which, so far as material, states: "I received on 6 November your letter asking for help with your case in the AAT about access to your old unemployment benefits records. The letter from Social Security of 28 October mentions the internal review process. Apply there first please before approaching the AAT. Guidelines made by the 'then Attorney-General in March 1981 for dealing with applications in the AAT require me then to ask that you try the local legal aid body first. If you are unsuccessful then please send me: (a) the letter of refusal from the Legal Services Commission of SA; {b) the enclosed Commonwealth form of application duly completed; (c) after you have received from the Tribunal a set of the documents used in your case, your own brief notes on where the decision maker made mistakes; (d) your nomination of a solicitor to gre em er eee - . 7, . ' ity 9. represent you if financial assistance is authorised; (e) a note on what you hope to gain or stand to lose by the FOI proceeding - see guideline 8(b). It is not necessary to send me photocopies of any of the documents used in your case as I can get a set from Social Security." Attached to that letter were what were described as "Guidelines for the Provision of Legal or Financial Assistance by the Commonwealth Other Than Under the Conciliation and Arbitration Act" together with a form of application for legal or financial assistance. On 11 November 1986 the appellant responded to the letter of 10 November by a further letter which we do not find it necessary to recite. On 14 November 1986 the Attorney-General's Department replied to this lastmentioned letter and said, so far as material: "I shall be looking at your case, after the AAT has decided if the documents you have Iodged amount to a premature application for review and after s. 37 documents have issued from the Department of Social Security. Please write to me again to renew your request when those 2 steps have taken place." The appellant's application to the Tribunal was listed by it for a directions hearing in order to hear submissions from the parties as to whether or not the Tribunal had jurisdiction to hear the application. The appellant was the applicant and the Secretary of the Department of Social Security the respondent. The appellant represented himself. wre ee en a pene oe wt empe srceese Sve er ry 10. On 12 December 1986 Deputy President R.A. Layton of the Tribunal ruled that the Tribunal has jurisdiction to entertain the appellant's application for a declaration pursuant to sub-s. 62(2) of the Freedom of Information Act. The jurisdictional question which was perceived to arise was whether or not it is necessary for the appellant to have applied for and obtained an internal review of the decision of the Department of Social Security (being the decision referred to in the letter of 28 October 1986) before the Tribunal has jurisdiction with respect to the application. The application before the Tribunal is therefore still alive, but it seems that it has been dormant since 12 December 1986, probably because of the proceedings in this Court. On 20 November 1986 the appellant sought to file the form of application for judicial review to which we referred earlier, but it was rejected by the District Registrar on various grounds including the fact that it was not in correct form. On 2 December 1986 the appellant lodged the application for judicial review which is the foundation of the present proceedings. The historical narration of events concludes with a letter dated 4 February 1987 from the Department of Social Security to the appellant which, as we read it, purported to be a statement pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975. The writer of the letter, the Assistant Director of External Appeal's of the Adelaide office of the Department, said that access was granted to the appellants to documents covering the period December 1983 to the present, but that the file contained no documents relating to earlier ase yp wee ep rr re eee ee nanan ry 11. claims. The letter also stated the efforts which the Departmen asserts were made to locate the documents. Reference was made t "Disposal Schedule S406, approved by Australian Archives" which th letter said: ".,.provides for the destruction of USB case files one year after action is completed. Because the earlier papers in this case could not be located it has been presumed that they were destroyed after June 1984 in accordance with the Schedule. The Department keeps no record of case files destroyed and there is no obligation to do so." (sub-para. (e)) It was stated in sub-paras. (g) and (h) of the letter: " g) The decision to refuse access was therefore based on an inability to find the documents and a likelihood that they had been ' destroyed rather than any hard evidence that destruction had occurred. h) Accordingly the decision maker concluded , that the requested documents were no longer | in existence and for this reason determined [ to refuse the request under section ll of the Act." It ais difficult to discern the particular decision or decisions or conduct relied on by the appellant as constituting what ee eee - the application of 2 December 1986 describes as "the decision made by | the Attorney-General's Department", a difficulty obviously shared by nytt the primary Judge as a perusal of the transcript of 16 April 1987 reveals. Indeed the primary Judge gave ample opportunity to the appellant during the hearing on 16 April to amend his application so as to state clearly the decision or decisions of which he complained DERE AT ee and the grounds on which he challenged them under the Judicial Review Act; but the appellant declined to seek leave to amend. a T pee roe t Tat eee eT 12. The primary Judge said in his reasons for judgment that he was unable to discern any decision or decisions susceptible of review er any grounds available to the appellant under the Judicial Review Act to enable a review to take place; and he dismissed the application essentially on the ground that no reasonable basis for a review had been established. A motion to dismiss the application of the appellant was made, presumably pursuant to Order 20 rule 2 of this Court's Rules to Forster J. on the ground that no reasonable cause of action was disclosed. The principles governing applications for summary disposal of proceedings are well established: see Dey v. Victorian Railways Commissioners (1914) 78 C.L.R. 62 and General Steel Industries Inc. v. Commissioner for Railways (NSW) (1964) 112 C.L.R. 125 per Barwick C.J. at 129-130 and the many cases which followed them. The appellant's application should have been dismissed only if it was so obviously untenable that it could not possibly succeed. In our opinion it was plainly open to Forster J., on the material before him, to find as he did that the decision which the appellant seeks to impugn was not sufficiently identified and that there were no grounds identified or established by him for impugning any decision. We have, however, had available to us further material on the hearing of the appeal. It is difficult to determine with any real degree of clarity the particular decision or decisions or for that matter the conduct engaged in or proposed to be engaged in for the purpose of making the decision of which the appellant complains. But doing the best we can it appears to us that the essence of the appellant's complaint is that the Department of the Attorney-General 13. (the particular decision-maker is not identified but we do not pause to deal with that question) was wrong in law in declining to deal with or refusing, as the case may be, the appellant's application for legal assistance with respect to the proceedings before the Tribunal before exhausting the administrative remedies which the Department of Social Security apparently has available and before unsuccessfully seeking legal aid from other bodies. Section 69 of the Administrative Appeals Tribunal Act 1975 provides: " 69. (1) A person who - (a) has made, or proposes to make, an application to the Tribunal for a review of a decision; (b) is a party to a proceeding before the Tribunal instituted by another person; or (c) proposes to institute a proceeding, or is a party to a proceeding instituted, before a court in respect of a matter arising under this Act, May apply to the Attorney-General for the provision of assistance under this section in respect of the proceeding. (2) Where an application is made by a person under sub-section (1), the Attorney-General may, if he is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorize the provision by the Commonwealth to that person, either unconditionally or subject to such conditions as the Attorney-General determines, of such legal or financial assistance in relation to the proceeding as the Attorney— General determines." Section 69 is silent about both the machinery to be followed in dealing with applications for assistance and as to the specific r t1 ! ' '' t ' : m 14. matters or criteria to which the Attorney-General must have regard when considering them. The following remarks of Mason J. in Minister for Aboriginal Affairs v. Peko Wallsend (1986) 60 A.L.J.R. 560 at 565 are in point: "What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhuastive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must' be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors which the decision-maker may legitimately have regard .... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is confined by the terms of the statute, the court will not find that the decision maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act." See also Sean Investments Pty. Limited v. Mackeller (1981) 38 A.L.R. 363 per Deane J. at 375. In our opinion it was open to the Attorney-General to take into account, upon receipt of the appellant's application for assistance under s. 69, the existence of other avenues of legal aid and to require that the appellant pursue them before considering his TE Tae a wea esr ee eee s Le. 15. application under that section. The requirement by the Attorney-General's Department that the appellant should first exhaust his remedies for review within the Department of Social Security before pursuing his application to the Tribunal likewise does not appear to us to be a requirement open to challenge. This requirement was probably perceived by the Department as arising from s. 55 of the Freedom of Information Act which, so far as relevant, provides that a person is not entitled to apply to the Tribunal for a review of a decision refusing to grant access to a document until he has first exhausted the rights of internal departmental review afforded by s. 54 of the Freedom of Information Act. This assumes that the decision made in this case was "a decision ... relating to a refusal to grant access to a document ..." within the meaning of sub-s. 26(1) of the Freedom of information Act, a question which we do not find it necessary to decide in this case. Whether it was or was not such a decision and whether the Attorney-General's Department was correct in assuming, as apparently it did, that its letter of 28 October 1986 was a notice pursuant to sub-s. 26(1) does not matter. There is no error of law discernible from the requirement of the Attorney-General that, in considering the appellant's application for assistance under s. 69, he should first exhaust whatever remedies for review are available within the Government department whose decision is sought to be impugned before proceeding to the Tribunal before whom the applicant seeks to proceed with legal assistance. In these circumstances we do not find it necessary to deal with the additional arguments raised by counsel for the respondent, ae ee egos caper aro a 16. which were said to lead to the dismissal of the appeal, including alleged defects in the form of the appellant's application for review and the more substantive question whether an application for a declaration pursuant to sub-s. 62(2)-of the Freedom of Information Act is a matter for which assistance can be granted under s. 69 of the Administrative Appeals Tribunal Act. Even if we had concluded that one or more of the grounds mentioned in sub-s. 5(1) or 6({1) of the Administrative Decisions Judicial Review Act 1977 ("the Judicial Review Act") had been established, we would, in the exercise of our discretion, have declined to grant relief in this case. The decision of the Attorney-General refusing or declining to grant assistance under s. 69 or deferring that decision for the time being until certain conditions have been complied with is not a decision which really affects the appellant's rights. He was told by the Attorney-—General's Department, in its letter to him of 14 November 1986, that his application for legal assistance would be examined again after the Tribunal had decided whether his application to it was premature and after the Department of Social Security had issued the documents required by s. 37 of the Administrative Appeals Tribunal Act. The Tribunal has now decided that the appellant's application was not premature and the Department of Social Security has, as we understand it, issued a s. 37 statement to the appellant by its letter to him of 4 February 1987. The appellant is therefore, on the invitation of the Attorney-General's Department, at liberty to renew his application for assistance. For the Court to intervene at this stage would serve no purpose. ae pee ep, ; ' , le a4 17. If we had not proceeded to hear the appeal itself and had merely dealt with the application by the respondent to strike it out for want of prosecution we would have acceded to that application. The history of the appeal, earlier recited, shows a continuing and unexplained failure by the appellant to comply with directions of Judges of this Court and its Deputy Registrar relating to the settling of the index to the appeal papers and other matters, all of which must be complied with to enable the Court's business to be properly and efficiently dealt with. In the circumstances however it is appropriate that we make no order on the respondent's motion except that the appellant must pay the costs thereof. The appeal is dismissed. The appellant must pay the respondent's costs of the appeal and of his motion of 23 September 1987. I certify that this and the 16 preceding pages are a true copy of the Reasons for Judgment of the Court. sesociats <r Co Dated: I9 November 1987 smaananth eentnaenaadietenticammane uereatante stow ene