McGregor v Chief Executive Officer of Centrelink [2000] FCA 701

FEDERAL COURT OF AUSTRALIA

McGregor v Chief Executive Officer of Centrelink [2000] FCA 701

PROCEDURE – strike out application – where notice of appeal from decision of Administrative Appeals Tribunal filed out of time – whether extension of time to file and serve notice of appeal should be allowed. Administrative Appeals Tribunal Act 1975 – s 44 Freedom of Information Act 1983 Federal Court Rules – O 20 r 2 Gallo v Dawson (1990) 64 ALJR 458 cited JOHN ROBERT McGREGOR v CHIEF EXECUTIVE OFFICER OF CENTRELINK Q 16 OF 2000 SPENDER J 24 MAY 2000 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 16 OF 2000

BETWEEN: JOHN ROBERT MCGREGOR

APPLICANT

AND: CHIEF EXECUTIVE OFFICER OF CENTRELINK

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 24 MAY 2000

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application for an extension of time to file and serve a notice of appeal be refused. 2. The application Q16/2000 be dismissed. 3. The respondent on the motion pay the applicant's costs on the motion, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 16 OF 2000

BETWEEN: JOHN ROBERT MCGREGOR

APPLICANT

AND: CHIEF EXECUTIVE OFFICER OF CENTRELINK

RESPONDENT

JUDGE: SPENDER J

DATE: 24 MAY 2000

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 I have before me a notice of motion filed on 22 March 2000 by the respondent in proceedings Q16 of 2000, seeking orders that: "1. The notice of appeal filed 25 February 2000 be dismissed as the grounds of appeal do not raise any question of law; 2. Further or alternatively, the notice of appeal filed 25 February be dismissed pursuant to Order 20 rule 2 of the Federal Court rules for disclosing no reasonable cause of action; 3. Further or alternatively, that the extension of time for the filing of Notice of Appeal out of time be refused; … " 2 At issue, really, is the question of whether there is an arguable appeal available to Mr McGregor from the decision of the Administrative Appeals Tribunal (the Tribunal), constituted by Senior Member Mr K.L. Beddoe, given orally on 19 October 1999 and reduced to writing in a document headed "Reasons for Decision", dated 12 November 1999. 3 Mr McGregor is appearing for himself, and one makes allowance for that circumstance, but the Federal Court is concerned to administer justice according to law, and in the present circumstances it is necessary to have regard to the provisions of the Administrative Appeals Tribunal Act 1975 (the Act) which permit an appeal to the Federal Court of Australia from decisions of the Tribunal. Section 44(1) provides: "A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding." 4 That is to say, an appeal is only available on a question of law. Matters such as whether a document exists or does not exist, and whether it appears in a manipulated format or not, are all questions of fact. Section 44(2A) provides: "An appeal by a person under sub-section (1)...shall be instituted – (a) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; ..." 5 In this particular case, it appears that the written reasons for judgment were received by Mr McGregor on or about 16 November 1999. It follows then that the time for appealing permitted by the Administrative Appeals Tribunal, without an order by the Court for an extension of time, expired on or about 12 December 1999. 6 On 23 February 1999 a document headed "Notice of Appeal" was filed by Mr McGregor. The question of law said to be raised on the appeal is: "Section 24A(a) Freedom of Information Act (1983) that an agency or a minister may refuse a request for access to a document if all reasonable steps have been taken to find the document." 7 The grounds of the appeal are said to be: "Respondent's statement that information recorded from requested document 'could or could not be guaranteed to be obtainable'." 8 On 1 March 1999 an application for an extension of time to file and serve a notice of appeal from the Tribunal was filed. The grounds of that application are said in it to appear in the annexed affidavit. That affidavit, in respect of the request for an extension of time to file and serve notice of appeal, says: "I request an extension of time to appeal this decision of the Administrative Appeals Tribunal due to delay in receipt of written reasons of the Tribunal's decision until two days before the 28-day application period and personally stressing commitments over December 1999 January 2000 period. I hereby request that this application for extension meet the Federal Court of Australia's favourable approval." 9 The material seeking to explain the delay is sparse, and it is important to have regard to the object of the power to extend time contained in s 44(2A) of the Act. In Gallo v Dawson (1990) 64 ALJR 458 at 459, McHugh J said: "The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co of Australia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar(1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice". 10 Here, Mr McGregor seeks to revisit the Tribunal's decision that s 24A of the Freedom of Information Act 1982 applied in respect of Mr McGregor's request. What had happened is that on a document constituting a claim for sickness allowance (Exhibit 1 before the Tribunal) Mr McGregor had inserted information in response to the various questions asked. In particular, part 22, headed "Tax File Number(s)", sought information concerning the applicant and his tax file number, with boxes provided to be filled in and then signed and dated by the applicant. 11 In accordance with a concern for privacy requirements concerning tax file numbers, a direction (Exhibit 3 before the Tribunal) had been given to staff of the Department of Social Security that: " … Regional office staff are instructed to destroy documents provided by clients to satisfy a request for a TFN. The document must be destroyed immediately after the TFN has been entered correctly onto the PDU system. The destruction must be carried out in accordance with classified waste procedures." 12 In compliance with that direction, the entirety of part 22 of the original claim for sickness allowance had been removed and, according to the evidence before the Tribunal, destroyed. However, as the direction I have just referred to indicated, the tax file number of the applicant was encoded onto a computer. The information put onto the computer was, and is, available to the applicant: a print-out of the computer information gleaned from the information Mr McGregor supplied in part 22 appears at T15 of the documents provided to the Tribunal. 13 That document displays the tax file number of Mr McGregor in code, and without knowing how to decode the code it is not possible to say whether the letters and numbers recorded there are the correct tax file number. Be that as it may, it is the only copy of the information originally supplied in the hard copy claim for sickness allowance which exists. The Tribunal determined on 19 October, as set out in its written reasons dated 12 November 1999: "… I am satisfied that Centrelink has taken reasonable steps to find the relevant part of the document and I am also satisfied that part of the document no longer exists, it having been deliberately destroyed by Centrelink because of its obligations in relation to tax file numbers. I think, therefore, the decision to refuse access to Question 22, which was part of Exhibit 1, was correctly made on the basis that the respondent has taken reasonable steps to find the document and the document does not exist. That fulfils the terms of section 24A and that means that the decision under review must be affirmed." 14 If, as Mr McGregor contends, there is any error in that conclusion, it is in my view an error of fact. For the purpose of the present motion no question of law is identified in the document headed "Notice of Appeal". The submissions from Mr McGregor from the bar table articulate the considerations he wants to urge in respect of the correctness of the Tribunal's decision. 15 In my opinion, to refuse an extension of time would not work an injustice to Mr McGregor, having regard to the nature of the litigation, the issues that were before the Tribunal and the consequences for the parties of the grant or refusal of an extension of time. 16 The prospect of the applicant succeeding in an appeal pursuant to s 44 of the Act is a consideration relevant to whether an extension of time should be granted, and in my assessment the prospects of success are nil. This court is concerned only with the legality of the decisions made by the Tribunal, and not with their correctness. While I have difficulty in seeing what is, in truth, the matter of concern to Mr McGregor, the position is that there is nothing in the material before me to indicate that there is any arguable question of law arising from the decision of the Tribunal. In those circumstances, it is a mercy to bring the proceedings to a halt now. 17 An appeal from the Administrative Appeals Tribunal, while styled an appeal, is in fact a proceeding in the original jurisdiction of this court. Having regard to that circumstance, and for the reasons which I have set out earlier, I would have ordered on the application that the notice of appeal be dismissed pursuant to O 20 r 2 of the Federal Court Rules, as disclosing no reasonable course of action. An extension of time for the filing of a notice of appeal is necessary for this matter to advance further. The application for an extension of time for the filing of a notice of appeal out of time is refused. Since I have refused that extension of time, the application will be dismissed. 18 The applicant on the motion is to have its costs of the motion to be taxed if not agreed. The application Q16 of 2000 is dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.