26 Whether an application or other proceeding can be described as "frivolous or vexatious", has been examined in a number of authorities including Attorney-General (Vic) v Wentworth (1998) 14 NSWLR 481. In that case it was held that proceedings may be so characterised if they have been instituted with the intention of annoying or embarrassing the person against whom they are brought; if they are brought for purposes collateral to a court's adjudication of the dispute; or if they are, irrespective of the litigant's motive, so obviously untenable or manifestly groundless as to be utterly hopeless; see per Roden J, at 491.
27 In the AAT, Senior Member Handley held that at least two of the criteria set out by Roden J had been satisfied. First, the applicant's purpose in bringing the applications then before him had been to annoy H and Epstein; see at [107]. Secondly, the Senior Member concluded, at [109], that "having reviewed the merits of the application I am satisfied that it cannot succeed". Accordingly, he made the order to which I have already referred, that the applicant must not make, without leave, any further application to the Tribunal in relation to freedom of information requests concerning H or Mr Epstein.
28 In granting the respondent's application, the Senior Member referred, at [109], to two authorities in this Court, Duncan v Fayle (2004) 138 FCR 510 and Theo v Secretary, Department of Family and Community Services (2006) 42 AAR 503. In Duncan, French J said, at 517 (in a passage quoted with apparent approval by Spender J in Theo, at 508);
'A decision dismissing an application as frivolous or vexatious under s 42B(1) is a decision which finally disposes of the application. It has necessarily involved a consideration of the merits in the sense that it requires a finding that the application cannot succeed.'
His Honour then went on to explain the views expressed by the three judges of this Court sitting as Presidential Members of the Tribunal in Re Williams and Australian Electoral Commission (1995) 38 ALD 366, that the application of s 42B attracts the same general criteria for dismissal as apply to proceedings in this Court.
29 The question of law raised by this ground of appeal is, accordingly, whether on the application of the well-understood tests for determining whether a proceeding is frivolous or vexatious, it was open to the Tribunal to characterise the applicant's application in that way. To answer that question, it will be necessary to set out the background to the respondent's application under s 42B.
30 Between June 2004 and the date of the hearing before the AAT, the applicant had made 18 FOI requests. Further, the applicant had, to the date of hearing, lodged with the AAT 15 applications for review. As Senior Member Handley said at [105] of his decision, "[a] feature of the applications to date has been the request by the [applicant] for documents sent to or from H and/ or Epstein and then for defined periods of time". The Senior Member also noted, at [106] and [108], that a common feature of the applications to the AAT was that they had been withdrawn after lodgement, and, in at least one case, had concerned documents to which the applicant had already been granted access, or documents which would not reasonably be thought to have been in the possession or control of the respondent. On the basis of all the evidence before him, the Senior Member concluded that;
'In my view his conduct has been with the intention of annoying the Agency and particularly H and Epstein… I agree with the submissions of the respondent that the applicant's behaviour can be characterised as stalking and harassment. I think that it also borders on being predatory. His behaviour as evident by these multiple applications is to annoy H and Epstein …'
31 Those findings of fact were open to the Senior Member on the evidence before him, and I can discern no other legal basis on which they can be impugned.
32 It is clear, as indicated, for example, in Cooper v Comcare (2002) 118 FCR 157, at 161, that the Tribunal's power under s 42B is to be exercised sparingly, particularly in a case like the present where there is no right to a review of the merits of the Tribunal's decision but the appeal under s 44 of the AAT Act is confined to a question of law. Nonetheless, I have not been persuaded that there has been an improper exercise of the Tribunal's discretion under s 42B. Nor have I been able to conclude that it was not open to the Tribunal to find that proceedings commenced and maintained by the applicant were frivolous and vexatious.
33 The frequency of the applicant's FOI requests and applications for review of decisions on those applications, when seen in the context of their repetitive nature and their occasional withdrawal, leaves open an inference that the requests and applications were made for purposes other than a genuine concern to have access to the contents of the subject documents. Whether the applicant's true purpose was to cause annoyance to one or more of H, Epstein and the respondent's FOI officer, or was some other collateral purposes is not really significant. It is sufficient that a finding was available that the institution and prosecution of the proceedings satisfied at least one of the tests formulated by Roden J in Wentworth (supra). When it moved to the merits of the claim, the Tribunal found here, as it did of necessity in Duncan (supra) (see per French J at 517 [22]), that, whatever the applicant's motive in bringing the application, it was not maintainable.
34 That was so, principally, because granting the application would confer no practical benefit on the applicant. As the reasons of the Tribunal emphasise, the email of 6 September was of a purely personal nature and therefore of no legitimate interest to Mr Ford; see at [99]-[100]. To give him access to it could do no more than satisfy his curiosity about what had been said in the email of 6 September; see Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429, per Heerey J at 441.
35 Once it is accepted that the requests had no practical utility, they attract the application of the principles enumerated in Re Reddish and Civil Aviation Safety Authority [1999] AATA 721. There, at [33], Blow DP, dismissing an application under s 42B(1)(a) of the AAT Act, said:
'33. In this context, "frivolous" means "obviously unsustainable": Attorney-General of the Duchy of Lancaster v London and North Western Railway [1892] 3 Ch. 274. The cases of Gowing [(1990) 11 AAR 411], Surf Air [(1991) 22 ALD 118] and Williams [(1995) 38 ALD 366] are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant. Plainly this Tribunal will not be able to make a decision that will be of any practical benefit to the applicant, and it would be a waste of everyone's time and money for any of these three applications to be allowed to remain on foot.'
As I read it, the principle which the Deputy President there adumbrated is that, if the relief sought will be of no practical benefit to the applicant, it will not be granted. The Tribunal has consistently applied Reddish (supra); see, for example, Re Jack Denis Mulder and Centrelink (2005) 41 AAR 468. In my view, that is a correct application of s 42B in a case in which a respondent claims that the invocation of the Tribunal's jurisdiction is frivolous or vexatious.
36 Here, as Senior Member Handley found at [100] of his reasons in relation to the 6 September email, "it is… apparent from the document that its content has nothing to do with the operation of the respondent or of government". In this case, a decision to release the document could not possibly have conferred a practical benefit on the applicant so, on analysis, his claim is "obviously untenable", if not "manifestly groundless", to use the expressions favoured by Roden J in Wentworth (supra).
37 In the final analysis, the applicant repeatedly made applications under the FOI Act in substantially similar terms and, when they were refused, applied to the Tribunal for review of those refusals on much the same grounds. Significant numbers of those applications were withdrawn before they were resolved. The inference was therefore reasonably open that the applications had been made to annoy or harass one or more of H, Epstein and the respondent's FOI officer. Even if, contrary to that inference, the tendency to annoy or harass had been co-incidental, none of the relevant applications was capable of conferring a practical benefit on the applicant. It was therefore open to the Tribunal, to refuse, as it did, the application.
38 It should be emphasised that the Tribunal's decision under s 42B was not akin to summary judgment pronounced at an early interlocutory stage of proceedings (as to which see General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, per Barwick CJ, at 129 and Jefferson Ford Pty Ltd v Ford Motor Company of Australia (2008) 167 FCR 372, per Rares J, at 387-8; and per Gordon J, at 406). The Tribunal's conclusion was reached after a full hearing, and a very full consideration of the nature and merits of the applicant's claims. The effect of the direction under s 42B was to prevent furtheragitation of issues between the applicant, H, Epstein and the respondent, with the objective described at [111] of the Tribunal's decision that "[l]itigation initiated by the applicant involving H and Epstein must surely either end, or at the least, be scrutinised by a leave application". The applicant has, therefore, not been shut out from any recourse at all to the Tribunal. Rather, by reason of the manner in which he has chosen in the past to pursue applications in that forum, he has now been required to demonstrate reasonable grounds on which the Tribunal should grant him leave to initiate further applications to it. In the circumstances, it was a reasonable exercise of the Tribunal's discretion to require future applications by the applicant to be "filtered" in that way.
39 As neither the Tribunal's process of reasoning nor its final order under s 42B discloses any error in the formulation or application of the law, this ground of appeal must also fail.