Chand v Administrative Decisions Tribunal & Anor

Background 10The Appeal Panel recorded - "2. Ms Chand was employed by the agency between 2000 and 2005. Around 2001 she made internal complaints relating to the conduct of other employees that she considered involved corrupt practices. Later she took leave on medical advice. The agency terminated her employment in 2005 on medical grounds. 3. Ms Chand has brought various proceedings against the agency. She contested her termination in the Australian Industrial Relations Commission. In this Tribunal's Equal Opportunity Division she sued the agency over alleged sexual harassment by fellow employees during her employment and over alleged victimisation for making those complaints. As to those matters, see Chand v Rail Corporation of NSW [2007] AIRC 911 (21 November 2007), and Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 (30 April 2009). There is also a reference in the agency's material to proceedings before the Transport Appeals Board. 4. The litigation mentioned forms part of the background to the request under notice. ... ".

The application for access 11On 3 July 2007 Ms Chand lodged with RailCorp an application under the FOI Act seeking access to - "1. A complete unexpurgated copy of all documentation that relates directly to all of the Administrative Decision Tribunal costs incurred in actions that are current, and or pending involving State Rail Authority/RailCorp against me in all current and pending external review forums such as the Administrative Decisions Tribunal, Anti-Discrimination Board and the NSW Courts regardless of who is attributed as the initiator of each individual process. 2. A complete table of documents that clearly identifies each document for which privilege is claimed, and an explanation as to how each specific document attracts the claim for privilege in actions involving State Rail Authority/RailCorp and any of its antecedent organisations against me, regardless of who is attributed as the initiator of each individual process. 3. Complete and unexpurgated copies of any and all documentation that does not attract privilege and relates directly, or indirectly to current or pending action involving State Rail Authority/RailCorp and any of its antecedent organisations against me regardless of who is attributed as the initiator of each individual process, which includes but is not limited to submissions, reports, e-mails, diary notes, minutes of meetings, or discussions, transcripts of telephone conversations, and other related documents including any advice sought, or given by any internal, or external entity but excludes correspondence sent from and received by me. 4. Any decisions supplied by any person or entity in relation to this specific application including all documents and processes identified by the application." 12The four paragraphs came to be called categories 1, 2, 3 and 4.

RailCorp's determinations 13RailCorp made an initial determination on 18 September 2007. It made a further determination on 1 November 2007 on an internal review requested by Ms Chand. 14On 31 December 2007 Ms Chand filed an application for review in the Administrative Decisions Tribunal. On 5 February 2008 an order was made pursuant to s 65 of the ADT Act remitting for reconsideration RailCorp's determination in respect of the category 1 documents, and a redetermination was made on 26 February 2008. Another order was made on 18 March 2008 remitting for reconsideration RailCorp's determination in respect of the category 3 and category 4 documents, and a redetermination was made on 22 April 2008. 15The result of the determinations was -

• access was granted to category 1 documents, subject to deletion of certain exempt material;
• RailCorp did not hold any category 2 documents;
• access was refused to category 3 documents on the ground in s 25(1)(a1) of the FOI Act, that "the work involved in dealing with [the application for access] would, if carried out, substantially and unreasonably divert [RailCorp's] resources away from their use by [RailCorp] in the exercise of its functions"; and
• RailCorp did not hold any category 4 documents.

The Tribunal's decision 16The Tribunal constituted by Ms S Higgins, Judicial Member, heard the application for review on 18 September 2008. The Tribunal was required to decide what the "the correct and preferable decision" was on Ms Chand's application for access to documents: ADT Act, s 63(1). 17Evidence was given by a statement by Mr James Morton, a solicitor with RailCorp who had made the April 2008 redetermination and also affirmed that RailCorp did not hold any category 2 documents, and by statements by Ms Chand. Ms Chand was not present, but was represented by an agent, Mr Robert Cianfrano, who cross-examined Mr Morton. 18At the conclusion of the hearing orders were made in relation to category 1, category 2 and category 4 documents, and the Tribunal's decision in relation to category 3 documents was reserved. That decision was given on 2 March 2009. Reasons for the decision and the earlier orders were published: Chand v RailCorp [2009] NSWADT 44.

Category 1 documents 19Ms Chand had already been given access to copies with deletion of the exempt material. The Tribunal recorded that no issue was taken with the deletions. It was thought appropriate formally to order that RailCorp's determination be set aside and replaced by a decision to grant access to the documents with the exempt material deleted. An order to that effect, although not referring to the exempt material, had been made on 18 September 2008. 20The Tribunal said - "15. Ms Chand however, continued to assert that the respondent's determination of this part of her FOI request was not fully responsive in that there were invoices which it held that fell within the terms of her request and which it had failed to disclose to her. Ultimately, this was an adequacy of search issue and as I explained during the course of the hearing, a recent decision of the Court of Appeal had held that the Tribunal did not have jurisdiction to hear and determine such an issue: see Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce & Ors [2008] NSWCA 140 at [76], [78] and [135]. Instead the Court found that where an FOI applicant was 'dissatisfied with an agency's response that a document does not exist or is not held by the agency is to seek prerogative relief, or relief via the Ombudsman Act' : see per Beasley JA at [76] [sic]." 21Ms Chand told the Appeal Panel that her appeal was as to category 2, category 3 and category 4 documents, and neither before the Appeal Panel nor in the present proceedings was there complaint that there were further category 1 documents to which access should have been given.

The Category 2 documents 22The Tribunal had made an order on 18 September 2008, dismissing the application in relation to category 2 documents "as the Tribunal has no jurisdiction to hear and determine a question concerning the adequacy of search by an agency for the documents for which access has been sought". 23The Tribunal recorded at [23] that Ms Chand was adamant that a document as described in her request existed, and that RailCorp was refusing to produce it "as it wished to cover up its own misadministration". The Tribunal continued - "23. ... In support of her contention Ms Chand relied on a 7 page list of documents, prepared by the respondent, which listed numerous documents, a copy of which the respondent had previously given Ms Chand (see attached 1 [sic] to Ms Chand's 1 September written response). 24. In my opinion, the list relied on by Ms Chand does not support her contention. The list itself is not a list of relevant documents over which the respondent has claimed privilege. Nor can it be inferred from the fact that the respondent prepared this list that it would also have prepared another list of documents it held and over which it had or would claim privilege if called on to produce the documents in question. On the other hand, the evidence of the respondent was and has at all times been that no such document was ever created or held. It is note [sic] that sections 5(1)(a), 16 and the definition of the term 'an agency's document' in subsection 6(1) of the FOI Act make it clear that a person's right to access under the FOI Act is a right that is limited to documents that are in fact held by the agency at the time of the FOI request is made: see Administrative Decisions Tribunal Appeal Panel (supra) per Beazley JA and Radar Investments Pty Ltd and Health Insurances Commission (2004) 80 ALD 733, [2004] AATA 166 at [40]."

Category 3 documents 24By s 25(5) of the FOI Act, RailCorp could not rely on the exemption in s 25(1)(a1) - " ... without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions". 25The Tribunal referred to this provision at [39], and noted that Mr Morton had written to Ms Chand and her then agent in accordance with s 25(5), and Ms Chand's response. It referred at [48] and [51] to Ms Chand's "refusal to limit the terms of her request" and "unwillingness to limit the terms of her request". It was implicitly found that the s 25(5) precondition was satisfied. 26The Tribunal gave extensive consideration to the evidence of Mr Morton concerning the time required for searching for documents and "processing" the application for access, with reference to Ms Chand's criticisms of his evidence. The Tribunal found - "51. ... that the respondent has established that the amount of work involved in carrying out this aspect of Ms Chand's FOI request would 'substantially and unreasonably' divert the respondent's resources away from their use by the respondent in the exercise of its functions and that its decision to refuse Ms Chand access to the documents requested on the grounds set out in section 25(1)(a1) of the FOI Act is the correct and preferred decision. In this regard I agree that the terms of Ms Chand's FOI request is extremely broad and on the basis that the evidence of Mr Morton I accept that it would be a substantial diversion of the respondent's resources to deal with Ms Chand's FOI request. I also find that it would be an unreasonable diversion of those resources having regard to Ms Chand's unwillingness to co-operate and also her unwillingness to limit the terms of her request. At the hearing, I suggested, through Mr Cianfrano, that Ms Chand having been provided with a copy of the TRIM computerised search, might like to consider limiting her request to specific files or specific documents. No such limit was however forthcoming. 52. I note that in her response of 1 September 2008, Ms Chand indicated her willingness to examine those files on the TRIM computerised list of files that were held within the legal division of the respondent. This was not pressed at the hearing. In any event if pressed, on the basis of the information on the list in regard to these files and the other material before the Tribunal, any inspection by Ms Chand would still require the respondent to allocate a substantial amount of resources to first examine each document on the files in question so as to ascertain whether the document is exempt and access should be refused on the basis of that exemption and then to extract the document if a determination is made to refuse access. Even if this process were agreed to by the parties, I doubt, having regard to the protracted history between the parties that this course would resolve their differences in regard to this application. 53. Accordingly, the Tribunal must determine this application on the applicable law and the relevant facts: see section 63 of the ADT Act. 54. For the reasons I have stated above, in my opinion the decision of the respondent in regard to the Category 3 documents is the correct and preferred decision and should be affirmed." 27The Tribunal made an order affirming RailCorp's decision to refuse access to category 3 documents.

Category 4 documents 28The Tribunal had made an order on 18 September 2008 dismissing the application in relation to category 4 documents, also "as the Tribunal has no jurisdiction to hear and determine a question concerning the adequacy of search by an agency for the documents for which access has been sought". 29The Tribunal recorded at [56]-[57] that RailCorp had understood, after obtaining clarification from Ms Chand, that the declarations she sought were documents which came into existence after she made her application under the FOI Act and which concerned the manner in which RailCorp's officers should process it. The Tribunal said at [58] that Ms Chand "did not cavil with Mr Morton's construction of her request in regard to this Category of documents". 30The Tribunal said at [59], referring to Radar Investments Pty Ltd and Health Insurances Commission [2004] AATA 166, that it was well established that a determination was only required "insofar as it relates to documents held by the agency as at the date the FOI request was received by the administrator". It noted that there were instances where, by agreement, the administrator considered documents later coming into existence, but that there was no agreement in this case. It concluded at [62] that "[o]n the material before the Tribunal ... the respondent has established that it did not hold as at the date it received Ms Chand's FOI request a document that fell within the terms of Category 4."

The appeal to the Appeal Panel 31Ms Chand filed her appeal on 30 March 2009. Fifteen grounds of appeal were stated, each asserting that the Tribunal "erred at law". The notice of appeal sought leave to extend the appeal to the merits, but referred in that respect only to the grounds of appeal asserting error at law. Many of the grounds of appeal were remote from any proper challenge to the Tribunal's decision. Others plainly could not constitute error at law. 32The appeal was heard by an Appeal Panel constituted by O'Connor DCJ, Mr S Montgomery, Judicial Member, and Emeritus Professor R Fitzgerald, Non-judicial Member, on 8 October 2009. The Appeal Panel's decision was given on 10 November 2009: Chand v RailCorp [2009] NSWADTAP 64. 33The Appeal Panel approached the matter by first considering what it described at [23] as "a number of procedural objections to the handling of Ms Chand's case", with which it dealt at [24]-[32]. In the present proceedings one of the so-called procedural objections became prominent in Ms Chand's submissions. 34One of the grounds of appeal to the Appeal Panel had been that the Tribunal - " ... erred at law by failing to ensure that all material relevant to the application for external review was disclosed by RailCorp to the Tribunal so as to enable the Tribunal to determine all of the relevant facts in issue in the proceedings. (Refer s 73(5)(b) of the Administrative Decisions Tribunal Act 1997, also statement at para 53 of the decision at first instance.)" 35Plainly enough as to this ground of appeal, the Appeal Panel said - "24. In our view the Tribunal followed orthodox procedure in obtaining the material relevant to the determination under notice. It gave directions of the usual kind. The initial obligation to ensure that all relevant material is placed before the Tribunal falls on the agency (see ADT Act s 58). The judgment of what is relevant is for the administrator (s 58(1)(b)). The provision to which Ms Chand refers, ADT Act s 73(5)(b), states that the Tribunal is to ensure that all relevant material is disclosed to the Tribunal. This is a complementary provision. It does not require the Tribunal to launch an inquiry into the adequacy of the agency's filing: see generally, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 167-170; and Minister for Immigration and Citizenship- v SZIAI [2009] HCA 39 (23 September 2009). 25. Normally the agency's filing will be sufficient to satisfy this requirement. In our view, there was nothing unusual or apparently deficient in the agency's filing in this case. Ms Chand did not specify what she considered the shortcomings to be. As to the way in which the evidence was presented by the agency, it was sufficient for the agency to provide an affidavit from Mr Morton and to have him made available for cross-examination. The material included statements made by Mr Stirling." 36The Appeal Panel then turned to category 2 and 4 documents, with which it dealt at [33]-[35]. It said that the Tribunal had "dealt correctly with the agency's determination as it related to" those categories, and explained - "33. ... The very terms of the request suggest that Ms Chand was not seeking documents in existence or possibly in existence at the time of the request. Category 2 is expressed as a request for the generation of a document ('a complete table of documents that clearly identifies each document for which privilege is claimed' etc). This typically, is the kind of document a FOI officer processing a request prepares as part of the determination responding to a request. If it not the proper subject of the FOI request itself. The FOI Act is legislation directed to enabling citizens to scrutinise documents held by government prior to the request being made. 34. The same characteristics are found in the Category 4 request ('any declarations applied by any person ... in relation to this specific applications' etc). Any such documents would be generated as part of the FOI search and retrieval process. They are not a proper subject of the FOI request itself. 35. The Category 2 and 4 requests are anticipatory. Of course once the FOI request is processed, there may well be a request for the documents relating to that process, and the Tribunal sometimes sees applications of that kind." 37The Appeal Panel then turned to category 3 documents, with which it dealt at [36]-[48]. It made brief reference to the Tribunal's role, and said correctly that each case "depends on its own particulars". It expressed its conclusion - "42. In our view, the Tribunal had well-explained evidence before it from an officer with appropriate knowledge as to the possible impact on the resources of the agency of the full processing of her request. His initial estimate of the number of pages that fell within the boundaries of the request was about 11,000. The Tribunal accepted this evidence, and, as well, his evidence as to the additional searches and enquiries that would be required. 43. It is plain, in our view, that this was a request that would have had a very significant impact on the agency's FOI processing resources. The request was a function of the scale of the litigation that had occurred between Ms Chand and the agency. 44. Moreover, it is apparent, from the context of the request, that there would have been numerous exemption claims in relation to such matters as privilege and confidentiality, relating, for example, to advice communications from and between lawyers, and to the drafting and preparation of statements from witnesses or potential witnesses. 45. In our view the decision made by the Tribunal in relation to the agency's refusal was reasonably open to it to make on the material before it, and we see no reason to disturb it." 38The Appeal Panel then said at [48] that, "In our view, there is no basis for any grant of leave to extend to the merits." 39The Appeal Panel finally turned to the costs of the appeal, with which it dealt at [49]-[66]. RailCorp had applied for its costs, and submissions had been made. 40Section 88 of the ADT Act provides that parties to proceedings before the Tribunal are to bear their own costs, save that costs may be awarded if the Tribunal is satisfied that it is "fair to do so" having regard to a non-exhaustive list of matters. 41The Appeal Panel referred to this provision, and began its consideration - "51 As our reasons indicate, we agree that there is no merit to this appeal. Ms Chand made a very wide request. Ms Chand's request for documents covered the litigation in which she had been involved. She referred to 15 matters when clarifying her request. In our view it should have been obvious to her that the request would encompass a vast number of formal documents and all the associated background material. It was reasonably likely that she would be met with a diversion of resources objection and a request to modify the scope of the request. For reasons already explained, categories 2 and 4 of her request did not relate to documents already in existence, and on the [sic] ground could not be processed within the terms of the Act. These matters were, we consider, clearly dealt with in the reasons of the Tribunal." 42After extensive consideration, the Appeal Panel expressed its conclusion - "64. In our view there are, in this case, a combination of circumstances which justify the making of a limited costs order in favour of the agency. First, this is an appeal, not a first instance hearing, and involves a second exposure to the expenses of litigation in the Tribunal for the successful party. The appropriate observations made by Handley DP at first instance in Kyriacou are not applicable to the same degree, in our opinion, to the bringing of internal appeals. Secondly, for the reasons we have given, there was no tenable basis in fact or law for this appeal. Thirdly, the appeal included allegations of misconduct and corruption without any credible evidence or material being advanced to support them. Fourthly, the second and third factors are sufficient, we consider, to conclude that the appeal was vexatious in the sense that it was an abuse of the processes of the Tribunal. 65. We have not given any great weight to the appellant's non-compliances with the timetable. They did not, we think, prejudice the agency in any great way, or hamper its ability to make its case at hearing. Further, we recognise that this is a case where the appellant has represented herself. She does not appear to have had any professional legal assistance. She said that she had been assisted by members of a body called the FOI Association, and mentioned in that regard two persons who have been frequent litigants in this Tribunal, Mr Cianfrano and Mr Saggers. 66. We do not think that the result should therefore be that the appellant be the subject of a general order that she pay the respondent's costs of the appeal. We note that the agency, to its credit, made economical submissions in reply. The agency's reply is itself concisely expressed, as are the agency's further submissions. In our view a sufficient order is that the appellant pay the agency's costs of appearance on the day of hearing (ie the professional fees for the day of Ms Johnson)." 43The Appeal Panel ordered that the appeal be dismissed, and that Ms Chand pay RailCorp's costs as it had indicated.

The proceedings in the Supreme Court 44The grounds of appeal in the notice of appeal were - "1. It is respectfully submitted that the Appeal Panel erred in its interpretation of the provision of s 53(5) of the Freedom of Information Act 1989 ('the FOI Act') which overrides the provision of s 58 of the Administrative Decisions Tribunal Act ('the ADT Act'). 2. The Tribunal was seised with jurisdiction pursuant to s 38 of the ADT Act and the statutory powers of the Tribunal pursuant inter alia to Division 3 of Part 3 of Chapter 5 of the ADT Act once the Tribunal is properly seised with jurisdiction following a lawful application for external review of a decision made by an agency under the FOI Act it must act in good faith and consider the request properly. If this were not the case then all that the agency would ever have to do would be to assert that there are no documents falling within the scope of the applicant's request. 3. Both the Tribunal and the Appeal Panel erred in law in accepting RailCorp's reliance on ' unreasonable diversion ground ' without questioning the validity of those assertions. 4. Bald assertions made by RailCorp officers without supporting evidence are not facts especially in circumstances when its officers conceded that they did not process the application further. It is therefore contended an error of law occurred in that the Appeal Panel did not exercise its implied functions to inquire further as to primary facts. ` 5. The Appeal Panel misunderstood the question of law raised by the appellant, Ms Chand in relation to s 73(5)9b) of the ADT Act which states that the Tribunal is to ensure that all relevant material is disclosed to the Tribunal . 6. In doing so the Appeal Panel denied Ms Chand procedural fairness. The Tribunal is a statutory Tribunal of a quasi judicial character, a form which generally requires a higher standard of procedural fairness. 7. The Appeal Panel erred in its failure to inquire which can certainly be a jurisdictional error in some circumstances. 8. It is respectfully submitted that the Appeal Panel erred in law by failing to determine that the Tribunal was under an obligation at law to determine - as one of the 'facta probantia' - whether the documents identified in TRIM entry were in fact exempt materials, advice or confidential exhibits. 9. It erred at para 28 in making a finding that the Model Litigant Policy was not raised at the Tribunal - it was raised but there was no mention of it in the decision. 10. It is respectfully submitted that the Appeal Panel erred at law in denying Ms Chand access to the Category 2 documents (privileged document list). This is the standard list that is required to be kept for litigation to identify privileged documents and would reasonably be expected to be held by RailCorp. The request was not prospective or anticipatory but a request for historical or held information. The Appeal Panel has therefore erred in primary finding of fact on the record which is an error of law. 11. Secondly the Appeal Panel finds " It is not the proper subject of the FOI" request itself ... ' thus proceeding narrowly on the basis the information was not in strict documentary form ie held in documentary form at the time of the request. However, there is nothing in the FOI Act which precludes or so limits the request. 12. Indeed the power to release information is available as a necessary and implied requirement to give proper effect to the FOI Act. Since nothing in the Act expressly or implied denied a request for documents on the grounds stated by the Appeal Panel, the documents should have been released. In denying access the Appeal Panel has misunderstood the true scope of the FOI Act and erred in law. 13. Moreover the documents that Ms Chand requested in relation to her dismissal without proper procedures are in no way classified as "exempt documents" and denial of access defeats the basic object of the FOI Act which gives the public the right to documents held by most government agencies to ensure that records held by the Government concerning your personal affairs are not incomplete, incorrect, out of date or misleading . 14. The Appeal Panel as the Tribunal misdirected itself in law by applying, for the purpose of s 25(5) of the FOI Act the wrong test ie it allows the agency (RailCorp) to refuse access to the documents. In fact it prevents the outright refusal of access by the agency to the applicant without assisting to amend the application. 15. The Appeal Panel erred in law in taking into account irrelevant considerations to order costs against the appellant when there was no probative evidence to support the finding and there is no provision in s 88 of the ADT Act to punish the unsuccessful litigant. 16. The Appeal Panel erred in law by failing to find that RailCorp had not fulfilled its obligations under s 24(4)(a)(b) [sic: ? 25(4)(a), (b)] of the FOI Act before denying access to the documents to Ms Chand. 17. The Appeal Panel erred at law in misinterpreting Ms Chand's request in relation to category 3 documents that clearly stated " copies of any and all documentation hat does not attract privilege and related directly or indirectly to current or pending action ... so there was no question of assuming that " ... there would have been numerous exemption claims in relation to such matters as privilege and confidentiality ... ". 18. The s 63 of the ADT Act combined with subsection 24(1) and 25(1)(a) of the FOI Act would operate to confer on the Tribunal the power to order the release of an exempt document as Nicholas J did in University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 at [81]. 19. The release of documents in Ms Chand's case is in the public interest and goes towards An open, honest administration and accountability in public service. There is no cause for embarrassment to the government or loss of confidence in the government." 45Ms Chand's principal complaint revolved around s 73(5)(b) of the ADT Act and error in failing to ensure that all relevant material was disclosed to the Tribunal. This was said to go to the decisions of the Tribunal and the Appeal Panel in relation to category 3 documents, and also in relation to category 2 documents. I will deal with that complaint in the first instance, and then with such further complaints as can be identified.

Ensuring all relevant material is available 46The heading to s 73 of the ADT Act is "Procedure of the Tribunal generally", but in some respects s 73 is more than procedural. It provides, for example, that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 73(2); and that the Tribunal is to act informally and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 73(3). 47Section 73(5) contains a collection of stipulations - "(5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (g) may dismiss at any stage any proceedings before it in any of the following circumstances: (i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate, (ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings, (iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and (h) may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure." 48Most of the paragraphs in s 73(5) express a power. Paragraphs (a) and (b) express obligations, although imperfect obligations to the extent that there is no means of enforcement. It is difficult to see how failure to act as quickly as is practicable could affect the validity of the Tribunal's decision-making, and para (a) is essentially aspirational; para (b) could more readily bear upon the validity of the Tribunal's decision-making. 49Ms Chand complained, referring to s 73(5)(b), that the Tribunal had not ensured that there was disclosed to it all material relevant to determining whether the work involved in dealing with the application for access to the documents would, if carried out, substantially and unreasonably divert RailCorp's resources away from their use by RailCorp in the exercise of its functions. I will hereafter use the shorthand "unreasonable diversion" and cognate expressions to refer to this exemption in s 25(1)(a1) of the FOI Act. 50What it was said the Tribunal should have done was not particularly clear. Ms Chand often spoke of a duty to enquire, and variously submitted that the Tribunal should have looked at the TRIM printouts (or perhaps she meant at the documents to which they referred) and seen that documents were duplicated and not all documents in fact related to her; that the Tribunal should have inquired into what the documents were that RailCorp was not releasing; and that the Tribunal should have enquired into "what was the exempt document and why they were not being released and why the FOI application was not being pressed". She said at one point that the Tribunal could have "directed RailCorp to give it a list of documents that it held with a brief description ... ". Ms Chand submitted to the effect that, had the Tribunal enquired, it would have recognised that Mr Morton's evidence of unreasonable diversion was exaggerated, and that the unreasonable diversion exemption was not made out. She drew attention to matters in the printouts and otherwise which she said should have "called up alarm bells" as to Mr Morton's exaggeration. 51Ms Chand's complaint extended to category 2 documents because, as best I understand it, she contended that a document in that category did exist and the Tribunal should have enquired into its existence and not accepted RailCorp's determination that it had no such document. 52Ms Chand described the Tribunal's failure to ensure that all relevant material was available as an error of law, or as jurisdictional error in misunderstanding or failing to exercise its power; she also said that there was want of good faith, and that there was procedural unfairness it seems because she was denied the assistance which would have come from the Tribunal exercising its power. Related to the Appeal Panel, the effect of the submissions was that there had been error on a question of law when it did not recognise error on a question of law by the Tribunal, but rather at [24]-[25] of its reasons rejected any obligation to "launch an enquiry into the agency's filing" and left to RailCorp what it should disclose. This complaint can be seen in grounds 1, 2, 3, 4, 5, 6 and 7 of the grounds of appeal, and possibly ground 8. 53Section 58 of the ADT Act, to which the Appeal Panel referred at [24], includes that the administrator whose decision is the subject of an application for review must lodge with the Tribunal copies of documents the administrator considers to be relevant to the determination of the application (s 58(1)(b)), and that the Tribunal may direct that the administrator lodge other documents as it considers relevant to the determination of the application (s 58(4)). By s 58(5), the Registrar of the Tribunal is to grant to the applicant reasonable access to any copy of a document lodged under the section by an administrator. 54Ground of appeal 1 was that the Appeal Panel was wrong in its reliance on s 58, when the application of s 58 was excluded by s 53(5) of the FOI Act. Section 53(5) provides that Division 2 of Pt 5 of the FOI Act, which is concerned with review by the Tribunal of an agency's determination of an application for access to a document or an application to amend its records, applies to an application for review of the determination "to the exclusion of ... Section 58 of the Administrative Decisions Tribunal Act 1997". It can readily be seen why the application of s 58 is excluded. It would defeat refusal to grant access to a document if the document had to be produced to the Tribunal and the applicant thereupon could have access to it. 55RailCorp accepted that the Appeal Panel had wrongly referred to s 58 of the ADT Act, but submitted that the erroneous reference was not material to its decision on what it called the procedural objection. That submission should be accepted. 56RailCorp had the burden of establishing that its determination was justified: ADT Act, s 61. It placed before the Tribunal the material on which it relied for that purpose, and Ms Chand placed material before the Tribunal in opposition and had the opportunity to challenge the extent of RailCorp's disclosure of material. Section 73(5)(b) does not speak of an enquiry, and for any obligation on the Tribunal to ensure that all relevant material was disclosed to be enlivened there had to be sound reason to conclude that all relevant material had not been disclosed. 57The Tribunal has no a priori knowledge of what all relevant material may be. The proceedings before the Tribunal were proceedings between parties (see in particular ADT Act, s 67), with presentation of the parties' cases (s 70; see also s 73(5)(c) and (d)). The Tribunal had powers to call witnesses and issues summonses for attendance and production of documents (ADT Act, ss 83, 84), and no doubt could have acted with a view to further material being disclosed in less compulsive ways, but before it could be said that it should act as required by s 73(5)(b) it had to appear to the Tribunal that there was relevant material to be disclosed so as to enable it to determine the facts in issue. Section 73(5)(b) did not require that the Tribunal act on speculation that there might be more material of relevance which RailCorp had not put before it, which would be likely to be a never-ending task. 58Ms Chand submitted that the Appeal Panel was in error in its reliance on Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429. The tentative remarks in the former case, in the context of Wednesbury unreasonable decision-making, were limited to enquiry into obviously available and centrally relevant material, with the observation that "[i]t is no part of the duty of the decision-maker to make the applicant's case for him": at 169-70. In the latter case the plurality contemplated possible jurisdictional error by a tribunal conducting inquisitorial proceedings if there were failure "to make an obvious enquiry about a critical fact, the existence of which is easily ascertained" (at [25]), but saw no occasion for further inquiry in that case; Heydon J said that it was "not unreasonable for the tribunal to proceed on the basis that if any further evidence was to be provided ... it would come from the respondent" (at [52]). Any obligation of a tribunal to inquire will depend on the nature of the tribunal and its powers and obligations. At the general level at which the Appeal Panel referred to these cases, there was no error, and s 73(5)(b) does not supply a more stringent obligation to enquire. 59At a factual level Ms Chand's complaint was, in part, one of failure to assess the material before the Tribunal adequately, not failure to require the disclosure of further material. So far as she contended that the Tribunal had not sufficiently examined the material before it, for example for duplications, any error was of fact. The Appeal Panel did not misunderstand the Tribunal's jurisdiction as relevantly found in s 73(5)(b). In its view, there was nothing unusual or apparently deficient in RailCorp's "filing" (para [25]), meaning the evidence on which was founded Mr Morton's explanation of why there would be substantial and unreasonable diversion, and it noted that Ms Chand "did not specify what she considered the shortcomings to be". It considered that there was no occasion for the Tribunal to have required disclosure of further material. This also was a question of fact. In my opinion, the Appeal Panel did not err on a question of law.

Exempt documents 60Ms Chand appears to have linked ground of appeal 8 with the Tribunal's duty to enquire. She submitted that the Tribunal should have enquired into which documents identified in the "TRIM entry" were exempt documents; perhaps inconsistently, she also submitted that the Tribunal and the Appeal Panel had erred in law in finding that documents were exempt without evidence (see ground of appeal 13) or without consideration of access to redacted copies in accordance with s 25(4) of the FOI Act (see ground of appeal 16), while saying also that she had not sought access to exempt documents (see ground of appeal 17), and as well that access could have been given to documents although they were exempt documents (see ground of appeal 18). The submissions in these respects were particularly difficult to understand 61University of New South Wales v McGuirk [20006] NSWSC 1362, to which ground of appeal 18 referred, was reversed on appeal, and the Tribunal has no power to grant access to an exempt document: McGuirk v University of New South Wales [2009] NSWCA 321; (2009) 75 NSWLR 224. Ms Chand appears to have seen error in [44] of the Appeal Panel's reasons, where it was said that it was "apparent, from the context of the request, that there would have been numerous exemption claims ... ". The Appeal Panel did not find that particular documents were or were not exempt documents, nor was there any question of access to exempt documents. The Appeal Panel was making the point that extensive consideration of what documents were exempt documents would be necessary, as a matter going to unreasonable diversion. There was no error on a question of law.

Assistance to the applicant for access 62Ground of appeal 14 appears to be related to the grounds concerning finding unreasonable diversion. The substance of Ms Chand's submissions was that at the Tribunal hearing on 18 September 2008 she had offered, through Mr Cianfrano, to modify the extent of documents to which she wanted access, but the offer had not been taken up: therefore, the s 25(5) precondition to refusal of access to category 3 documents because of unreasonable diversion was not satisfied, and access could not have been refused. 63No ground in the appeal to the Appeal Panel raised this matter. It is not considered in the Appeal Panel's reasons. The Tribunal referred at [51]-[52] to limitation of the request for access, and said that an indication in Ms Chand's statement of her willingness to examine files in the TRIM computerised list of files held within Railcorp's legal division was not pressed at the hearing. In the present proceedings Ms Chand suggested that Mr Cianfrano had narrowed her application, but it became evident that she had in mind some instructions she had given to Mr Cianfrano which were not conveyed to the Tribunal. The Appeal Panel did not err on a question of law in relation to the s 25(5) precondition.

Documents not in existence 64The substance of Ms Chand's complaint was that the Appeal Panel had erred on a question of law in saying at [33] that the FOI Act was "directed to enabling citizens to scrutinise documents held by government prior to the request being made", and that the Tribunal should have determined that she be given access to category 2 and category 4 documents coming into existence after she applied for access. Her submission, reflecting grounds of appeal 11 and 12, was to the effect that the FOI Act was concerned with disclosure of information (for which she referred to the objects in s 5), and that although the FOI Act created legally enforceable rights to access to documents (s 16) it did not limit access to other information held by an agency; therefore, if information was later put into a category 2 table or category 4 declarations were later made, access should be given to those documents. . 65Under the FOI Act, access to information was given by access to an agency's documents: s 5(2)(b), s 16. There was no right to be given access to information, distinct from the right of access to documents in s 16. "Agency's document" was defined in s 6(1) to mean "a document that is held by an agency", and an application for access pursuant to s 17 and subsequent dealing with the application on behalf of the agency were with respect to documents held at the time of the application. The Appeal Panel did not err on a question of law in its decision as to category 2 and category 4 documents. 66Ground of appeal 10 appears to be an associated ground of appeal. Ms Chand asserted that a category 2 table was a standard list required to be kept for litigation to identify privileged documents, and that a category 2 document would reasonably be expected to be held by RailCorp. She submitted that her application was not anticipatory as described by the Appeal Panel at [35], but an application for "historical or held information"; it is not clear whether she meant that the table would have been held at the time of her application, or that the information was then held and the table would thereafter have been created. She submitted that the Appeal Panel "have therefore erred in a primary finding of fact on the record which is an error of law". 67It is not easy to identify a relevant ground of appeal to the Appeal Panel. However, the Appeal Panel endorsed the Tribunal's dealing with category 2 documents. As recorded by the Tribunal at [24], RailCorp's evidence was that no category 2 table "was ever created or held": it seems to have been a case of no document at all, rather than an after-created document. The Tribunal had no power to enquire into the sufficiency of RailCorp's search for an existing document: Administrative Decisions Appeal Panel v Director-General, Department of Commerce [2008] NSWCA 140 at [76]-[78], [135]. If there were an after-created document, it was not caught by the application for access. There was no error by the Appeal Panel on a question of law.

Model litigant policy 68Ground of appeal 9 referred to raising the model litigant policy. As with some other of the grounds of appeal, Ms Chand's submissions simply repeated what was stated in the ground. 69The grounds of appeal to the Appeal Panel had included that the Tribunal "erred at law" in failing to find that RailCorp's dealing with Ms Chand's application had been inconsistent with its obligation to act as a model litigant. The Appeal Panel said, as part of its dealing with the so-called procedural objections, that it would "not ordinarily interest itself" in that matter (at [27]), and after reference to Ms Chand being aggrieved over the time taken to deal with category 1 documents - "28. ... Moreover, there is no indication in the decision of the Tribunal below that the issue of non-adherence to the model litigant policy was raised. The reason it is now raised, as we understand Ms Chand's case, is to assist in dealing with the respondent's application for costs of the appeal." 70The Tribunal made for itself the correct and preferable decision, and other than perhaps to costs it was not relevant for it to consider whether RailCorp's dealing with the application should have been or was as a model litigant. There was no question of costs before the Tribunal to which that could have gone. No error of law could have been found by the Appeal Panel. Whether or not the model litigant policy was raised in the Tribunal is of no relevance in the present proceedings.

Section 58 reporting 71Ms Chand's submissions appeared to contend for error on the part of the Tribunal in failing to apply s 58 of the FOI Act, which empowered the Tribunal to bring to the attention of the Minister responsible for the agency its opinion that an officer of the agency "had failed to exercise in good faith a function conferred or imposed on the officer by or under this Act". Ground 14 of the grounds of appeal to the Appeal Panel had asserted error in that respect. The Appeal Panel said at [30]-[33] that this had not been raised before the Tribunal, that there was nothing that should have "led the Tribunal to consider actively the question of a s 58 report", and that in any event a decision one way or the other may not have been an appealable decision. 72There is no relevant ground of appeal in the present proceedings. Assuming an appealable decision, there was no error on a question of law in the Appeal Panel's dealing with the matter.

The Appeal Panel's costs order 73Ground of appeal 15 challenged the costs order made by the Appeal Panel. The submissions made by Ms Chand were, and were only - "70. There is no provision in s 88 of the ADT Act to punish the unsuccessful litigant but the Appeal Panel took into account all the irrelevant considerations as evident from its comments at [22] to punish Ms Chand for making the observations in her submission supporting her grounds of appeal. At the hearing Ms Chand had admitted that she was assisted in her submissions by the FOI Association members." 74The "comments at [22]" in the Appeal Panel's reasons to which this referred were - "Comments on 'Grounds of Appeal' 22. Ms Chand is a litigant in person, and appears to have drafted the grounds of appeal herself. Many of them involve attacks on the agency or on this Tribunal and its members. For example, ground of appeal no 8 refers to the agency's 'long history of corruption', ground of appeal no 6 asserts that the agency has failed to abide by its common law obligation to behave as a model litigant and ground of appeal no 12 refers to a 'pro-agency/pro-cover up of corruption bias' in this Tribunal. Ground of appeal no 15 asserts that the Member responsible for the decision under appeal decided the case in favour of the agency because she wanted to keep 'the powers that be' happy so as to 'keep her job'. Ms Chand regards herself as a wronged public interest whistleblower." 75Nothing in these "comments", which were less critical of the grounds of appeal than they might have been, supports that the Appeal Panel's reasons in the consideration and conclusions at [49]-[66] included any element of punishment. It was a relevant consideration in determining whether it was fair to award costs that the appeal "included allegations of misconduct and corruption without any credible evidence or material being advanced to support them" (at [64]). No error in the Appeal Panel's evaluative judgment as to fairness, or the exercise of its discretion, has been shown. No case for leave to appeal against the Appeal Panel's decision as to costs has been made out.

Orders 76The orders should reflect the ambivalence in Ms Chand's proceedings. I propose the orders - (a) so far as Ms Chand appeals pursuant to s 119 of the ADT Act, refuse leave to appeal against the Appeal Panel's decision as to costs and dismiss the appeal against the Appeal Panel's dismissal of the appeal to it; (b) so far as Ms Chand applies for relief by way of judicial review, dismiss her application; (c) Ms Chand pay RailCorp's costs of the proceedings. 77HODGSON JA : I agree with Giles JA. 78McCOLL JA : I agree with Justice Giles' reasons and the orders his Honour proposes.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2011